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o 

3 


THE 


LAW  OF  ARREST 


IN 


CIVIL  AND  CRIMINAL  ACTIONS 


BY 

HARVEY  CORTLANDT  VOORHEES 

OF    THE   BOSTON   BAR 


BOSTON 

THE   BOSTON   BOOK   COMPANY 

1904 


1904 


Entered  according  to  Act  of  Congress,  in  the  j'ear  1904, 

By  Harvey  Coutlandt  Voorhees, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


THE   UNIVERSITY    PRESS,    CAMBRIDGE,    U.  S.  A. 


PREFACE 

In  the  preparation  of  this  treatise  the  writer  has 
endeavored  to  produce  a  work  so  exhaustive  that 
the  profession  might  feel  justified  in  pronouncing 
it  a  standard  authority  on  the  subject  with  which 
it  deals.  At  the  same  time  it  has  been  the  effort 
to  produce  a  work  of  such  simple  style  that  it 
would  be  intelligible  to  those  not  versed  in  legal 
lore,  and  that  the  many  officers  of  the  law  who  are 
called  upon  to  invade  the  sacred  right  of  personal 
liberty  might  do  so  with  a  full  understanding  of  the 
rights  of  the  accused,  as  well  as  their  own  rights. 

On  the  points  of  law  where  the  cases  are  not  in 
harmony,  and  cannot  be  reconciled,  as,  for  example, 
whether,  at  common  law,  a  seal  was  essential  to  the 
validity  of  a  warrant,  a  careful  examination  of  the 
decisions  has  been  made,  and  what  has  appeared  to 
be  the  better  reasoning  and  weight  of  authority  has 
been  presented. 

The  citations,  covering  the  best  decisions  of  both 
English  and  American  courts,  have  been  selected 
with  view  of  making  the  work  exceedingly  useful 
as  a  general  treatise  on  this  important  subject  in 
the  different  States. 

HARVEY   CORTLANDT   VOORIIEES. 

Boston,  Mass.,  May  1,  1904. 


74i»l2<> 


CONTENTS 


PAGE 

Table  of  Cases ix 

CHAPTER  I. 
The  Right  of  Personal  Liberty 1 


Definition.  —  Magna  Charta. —  Petition  of  Right. — 
Act  of  1664.  —  Habeas  Corpus  Act.  —  English  Bill  of 
Rights.  —  Excessive  Bail  Prohibited.  —  American  Bill 
of  Rights.  —  Due  Process  of  Law.  —  The  Limit  of  Gov- 
ernmental Control. 

CHAPTER  n. 

The  Issuance  and  Service  of  Legal  Process  .   8 

Definition.  —  Jurisdiction.  —  Procured  by  Stratagem 
and  Fraud.  —  Procured  by  Illegal  Arrest.  —  Foreign 
Vessels.  —  Ceded  Territory.  —  Search  Warrant.  —  Illegal 
Seizure  does  not  affect  Admissibility  of  Evidence  procured 
thereby.  —  Bench  Warrant.  —  Warrant  of  Arrest.  — 
What  Officer  Must  Know.  —  Necessity  of  Returu.  —  Life 
of  Warrant.  —  Requisites  of  a  Valid  Warrant.  —  When 
Valid  without  Seal. 

CHAPTER  IIL 

Who  May  Issue  a  Warrant 32 

Mandamus.  —  Comjjlaiut.  —  Necessary  Evidence.  — 
Constitutional  Provision.  —  To  Whom  Directed.  —  Private 
Person.  —  Officer.  —  Delegating  Authority  to  Serve. — 
Arrest  for  Contempt. 


VI  CONTENTS. 

CHAPTER  IV. 

PAGE 

What  Constitutes  an  Aruest 39 

Definition.  —  Authority.  —  Necessary  Acts.  —  Control. 

—  Words  of  Arrest. — Touching.  —  Time  of  Arrest. — 
Place  of  Arrest. — Notice  of  Authority.  —  Resisting  Arrest. 

—  Officer's  Duty  After  Arrest.  —  Escape.  —  Liability  of 
Officer. 

CHAPTER  V. 

Arrest  with  Warrant 56 

Party  Named.  —  Officer's  Protection.  —  Valid  Warrant. 

—  Void  Warrant.  —  Taking  Life.  —  Interference.  —  Lia- 
bility of  Officer's  Assistants.  —  Taking  Prisoner  before  a 
Magistrate.  —  Officer's  Right  to  Release  Prisoner.  —  Offi- 
cer's Right  to  Detain  Prisoner.  —  Impossibility  as  a  De- 
fence. —  Place  of  Confinement.  —  Exercise  of  Officer's 
Judgment. — Civil  Arrest. — Debtors. — Fraud. — Affidavit. 

CHAPTER   VL 
Arrest  without  a  Warrant G8 

Private  Person.  —  Felony.  —  Resisting  Private  Person. 

—  Hue  and  Cry.  —  What  is  a  Felony.  —  Misdemeanor.  — 
What  is  Breach  of  the  Peace.  —  Use  of  Force.  —  Officer. 

—  Violation  of  City  Ordinance.  —  Presence.  —  Outside  of 
Jurisdiction.  —  Entering  Doors.  —  Entering  House  to 
Arrest  for  Peaceable  Drunkenness.  —  Deserters  from 
Army.  —  Arrest  to  Prevent  Crime. 

CHAPTER   VII. 

Breaking  Doors  to  Make  an  Arrest     ....       89 

Man's  Habitation  is  Sacred.  —  Notification,  Demand  and 
Refu.sal.  —  Civil  Process.  —  Criminal  Process.  —  Privnte 
Person's  Right  to  Break.  —  Who  is  Protected.  —  Breaking 
to  Prevent  Escape.  —  Inner  Doors.  —  When  Usual  Inner 
Door  is  Legal  Outer  Door.  —  What  is  a  Dwelling  House. 

—  Use  of  Portion  as  Dwelling.  —  Combined  Residence 


CONTENTS.  VI 1 

PAGE 

and  Place  of  Business.  —  Effect  of  Absence.  —  What  is 
a  Breaking. — Doors.  —  Windows.  —  Otlier  Openings. — 
Enlarging  Opening.  —  Entrance  by  Deception.  —  Effect  of 
Illegal  Breaking  on  Arrest. 

CHAPTER   YIII. 
Force  in  the  Act  of  Arrest 101 

Killing.  —  When  Justifiable.  — Felony. —  Misdemeanor. 

—  Eesisting  Arrest.  —  Fleeing  from  Arrest.  —  Excessive 
Force.  —  Right  of  Officer  to  Use  Club.  —  Right  to  l^emand 
Officer's  Number.  —  Use  of  Handcuffs.  —  Abuse  of  Hand- 
cuffs. 

CHAPTER  IX. 

DiSPOSIXG   OF    THE   PRISONER 114 

Confinement.  —  Termination  of  Officer's  Control.  — 
Taking  through  Street  Scantily  Attired.  —  Searching  the 
Prisoner.  —  Removal  of  Clothing.  —  What  may  be  Taken 
from  Prisoner.  —  Physical  E.xamination. 

CHAPTER   X. 
Arrest  in  Extradition  Proceedings       ....     120 

Extradition  and  Rendition  Distinguished.  —  Definition. 

—  Authority.  —  Discharge  and  Re-arrest. —  Examination. 

—  Scope  of  Habeas  Corpus  Writ.  —  Evidence.  —  Proced- 
ure. —  Matters  Inquired  Into.  —  Comity.  —  Treaty.  — 
Jurisdiction  Procured  by  Stratagem.  —  Other  Jurisdic- 
tional Questions. — Interstate  Rendition  is  OI)ligatory. — 
Preliminary  Proceedings.  —  Lies  for  Crime  only.  —  Who 
is  a  Fugitive  from  Justice. 

CHAPTER   XI. 

Evidence  Necessary  to  Establish  the  Offence    132 

Proof  Must  be  Beyond  Reasonable  Doubt.  —  Burden  of 
Proof.  —  Burden  of  Giving  Evidence.  —  Burden  of  Proof 


Vlll  CONTENTS. 

PAGE 

Never  Shifts.  —  Presumption  of  Innocence.  —  Burden  to 
Show  Excessive  Force.  —  Burden  to  Show  Offence  in 
Officer's  Presence.  —  Burden  to  Show  Authority  to  Arrest. 

—  Burden  to  Show  License.  —  Insanity.  —  Character. — 
Conduct  as  Evidence  of  Guilt. — Possession  of  Stolen 
Goods  as  Evidence.  —  Intoxication.  —  Confessions.  — 
Criminal  Capacity.  —  Dying  Declarations.  —  Best  Evi- 
dence Rule.  —  Ignorance  of  the  Law  May  Excuse. 

CHAPTER   XII. 
Exemption  from  Arrest 150 

Sovereigns. — Diplomatic  Agents. — Commercial  Agents. 

—  Government  Employees.  —  Other  Exemptions.  —  When 
Privilege  may  be  Waived.  —  Writ  of  Protection.  —  Per- 
sons Under  Guardianship.  —  Statutory  Exemptions. 

CHAPTER   XIII. 

False  Imprisonment 160 

What  Constitutes.  —  Pestraint. —  Consent.  —  Restraint 
Must  be  Total.  —  May  be  by  Words.  —  Serving  Lawful 
Process  Improperly  may  Constitute.  —  Party  Must  be 
Conscious  of  Restraint. 

CHAPTER   XIV. 
Trespass 167 

Definition.  —  Who  is  Trespasser.  — Trespass  vi  et  armis. 
— Accidental  Acts.  —  Criminal  Actions  for. — Criminal 
Intent.  —  In  Arrest  for  Intoxication.  —  Private  Persons 
Assisting  Officer.  —  When  Liable.  —  Refusing  to  Assist. 

—  Trespass  ab  initio. 

Index 175 


TABLE   OF   CASES 


[References  are  to  pages.] 


A  BBOTT  V.  Booth 
Ackerson  v.  People 

28 

Barnard  r.  Bartlett 

90,  93 

139 

Barnes  v.  Peters 

96 

Adams  v.  New  York 

16 

Barrett  v.  Copeland 

24 

Aga  Kurhboolie  Mahomed 

V. 

Bass  V.  State 

99 

Reg. 

94 

Basye  v.  State 

138 

Agnew  V.  Jobson 

118 

Batchelder  r.  Curriei 

21 

Ahem  c.  Collins 

41 

Bates  V.  Com. 

50 

Alderich  v.  Humphrey 

41 

Beaverts  i'.  State 

109,  110 

Allen  r.  Crofutt 

173 

Beers  v.  Beers 

4 

V.  Gray 

7,19 

Bell  V.  State 

5,  139 

17.  Martin 

93 

Bellows  V.  Shannon 

47,  48,  49 

r.  State 

5 

Belote  V.  State 

140 

V.  U.  S. 

135 

Benjamin  v.  Hathaway 

23 

Allison  V.  Rheams 

22 

Bessey  v.  Olliott 

168 

Almy  V.  Wolcott 

66 

Bevilfe  v.  State 

79 

Amadon  v.  Mann 

66 

Bigelow  V.  Stearns 

167 

Anderson  i'.  Roundtree 

154 

Bingham  i".  State 

33 

Andrews  i'.  People 

143 

Bird  V.  Jones 

161 

Aneals  v.  People 

138 

Birr  v.  People 

136 

Angelo  I'.  People 

145 

Black  well  v.  State 

118 

Appleton  V.  Hopkins 

64 

Blake's  Case 

156 

Archibald  v.  State 

146 

Blatcher  v.  Kemp 

15 

Arneson  v.  Thorstad 

60,  61 

Blatt  V.  McBarron 

169 

Arnold  v.  Steeves 

47,  60 

Biewitt  V.  Phillips 

167 

Ashley  r.  Dundas 

59 

Blight  V.  Fisher 

155 

Ashley's  Case 

68 

Block,  In  re 

130 

Attaway  v.  State 

133 

Blue  V.  Com. 

23 

Bond  V.  State 

5 

-gACON  V.  U.  S. 

Baldwin  v.  Murphj' 

17 

Bonner,  In  re 

27 

40 

I'.ookhout  V.  State 

28 

Ballard  v   State 

85 

Borrego  v.  Ter. 

134 

Bane  i\  Methuen 

35 

Boutte  V.  Emmer 

79 

Bank  of  Columbia  v.  Okely 

4 

Bowling  tv  Com. 

37,  109 

Barclay  v.  U.  S. 

71 

Boylston  v.  Kerr 

81 

Barker,  Ex  parte 

9 

Brewster  c.  People 

IGO 

X 

TABLE   OF   CASES 
[References  are  to  pages.] 

Bright  V.  Patton 

78 

Chase  v.  Fish 

151, 154,  157 

Brock  V.  Stimson       23, 

59 

03,  11.5, 

Chastaug  v.  State 

17 

165,  109 

Clark  V.  Brown 

138 

Brockway  v.  Crawford 

69 

V.  Cleveland 

54 

Brooks  V.  Cora.   G8,  78, 

91, 

106, 139 

V.  Woods 

19 

V.  State 

89 

Clarke  v.  May 

11,56 

Brown  v.  Beatty 

169 

Clay  V.  State 

13 

Ex  parte 

9 

V.  United  States 

86 

V.  Getehell 

154,  156 

Clement  v.  Dudley 

66 

V.  Howard 

19 

.  V,  State 

106 

In  re 

127 

Clifford,  Ex  parte 

53 

V.  Kendall 

167 

Cline  V.  State 

141 

i\  Levee  Com'rs 

4 

Clinton  v-  Xelson 

62 

V.  State 

5 

Cochran  v.  Toher 

112,  113,  114, 

V.  Weaver 

85,  107 

115 

Brown's  Case 

129 

Codd  V.  Cabe 

29 

Browning  v.  Abrams 

120 

Cody  V.  Al)rams 

164 

Brushaber  v.  Stegeniana 

41 

Cohen  i'.  Huskisson 

74 

Bryan  v.  Bates 

76 

Cole  V.  Hindson 

27 

Bryant  v.  State 

145 

V.  State 

146 

Burch  V.  Franklin 

69 

Colee  V.  State 

141 

Burke  v.  Bell 

60, 

114,  115 

Collins  V.  Lean 

1.3,  14 

Barley  v.  Griffith 

31 

Comer  v.  Knowles 

160,  162 

Burns  v.  Erben 

78 

Com.  V.  Acton 

17 

V.  State 

106 

V.  Barhight 

35 

Burton  v.  State 

143 

V.  Bishop 

146 

Butler  V.  Washburn 

53 

V.  Black 

30,37 

Butolph  V.  Blast 

79,  83 

V.  Borden 

35 

B.  &  W.  E.  Co.  V.  Dana 

70 

V.  Brigham 

139 

v.  Burroughs 

142 

QABELL  V.  Arnold 
Caffrey  v.  Drugan 

29 

V.  Carey 

51,  70 

63 

V.  Carroll 

70 

Cahill  V.  People 

89 

V.  Casey 

145 

Cameron  v.  Lighffoot 

22 

V.  Clieuey 

77,  170 

Campbell  v.  Sliermaa 

21 

V.  Choate 

134 

Canceini  v.  People 

5 

V.  Conlin 

10,  82,  103 

Cannon,  In  re 

127, 129 

V.  Cooley 

47,  49,  50 

Cantrill  v.  People 

52 

V.  Coughlin 

170 

Carlton  r.  People 

134 

t'.  County  Prison 

90 

Carr  v.  State 

69,  78,  126 

V.  Grotty         25, 

26,  28,  57,  58 

Carraby  v.  Davis 

65 

V.  Cullen 

142 

Carter  v.  State 

100 

r.  Culver 

142 

Gary  v.  State 

59 

V.  Dana 

16 

Caudle  v.  Seymour 

28 

V.  Doane 

148 

Chaffee  v.  Jones 

157 

V.  Dorsey 

141 

Chaudler  v.  Rutherford 

77 

V.  Drew 

67 

TABLE    OF   CASES 

xi 

[References  are  to  pages  ] 

Com.  I'.  Farrell 

53 

Com.  V.  Smith 

17 

V.  Field 

37 

V.  Stebbins 

148,  149 

V.  Foley 

74 

V.  Stephenson 

100 

V.  Foster 

15,  28,  36 

i".  Strupney 

101 

V.  Greer 

107 

V.  Thurlow 

136 

V.  Hagenlock 

141 

V.  Tibbetts 

17 

V.  Haney 

146 

V.  Tobin              23, 

78,  81,  172, 

V.  Harris 

137 

173 

V.  Hastings 

165 

I'.  Tracey 

52 

V.  Hawes 

125 

v.  Wait 

9 

V.  Hewes 

47,49 

V.  Walker 

139 

V.  Holstine 

136 

V.  Wiird 

28 

V.  Howe 

141 

V.  Weathers 

46,  111 

V.  Irwin 

90 

V.  Wilcox 

28 

V.  Johnston 

128 

I'.  Wilson 

138 

i".  Kenney 

1.39 

V.  Wright 

126 

V.  Knapp 

143,  144 

Commercial  Exch.  Ban 

k  v.  Mc- 

V.  KosIofE 

151 

Leod 

117 

V.  Leonard 

138 

Compton  V.  Wilder 

126 

V.  Linn 

76 

Conley  v.  Com. 

141 

V.  Lucy 

14 

Connor  v.  Com. 

34 

V.  Lynn 

34 

Conoly  V.  State 

43 

17.  McDermott 

139 

Conraddy  v.  People 

78,  85,  107 

V.  JIcMahon 

139 

Copeland  v.  Islay 

31 

V.  McXall 

71 

Cortez  v.  State 

50 

V.  Jlead 

145 

Coupal  r.  Ward 

164 

V.  Mika 

146 

Courtoy  v.  Dozier 

41 

V.  Miller 

55 

Coxson  V.  Doland 

153 

V.  Montgomery 

140 

Coyles  V.  Hurtin 

45,  170 

V.  Jloran 

28 

Crepps  V.  Durden 

21 

V.  Morihan 

52,  115 

Croom  V.  State 

69 

V.  Murray 

22 

Crosby  v.  People 

140,  141 

V.  Xickerson 

IfiO 

Cryer  f.  State 

69,  78 

V.  O'Brien 

137 

Curtis  I".  Hubbard 

98,  100 

I'.  O'Connor 

76 

V.  Phillips 

14,  34 

J)ANOVA]Sr  r.  Jones 
Darling  r.  Kelly 

77 

t".  Preece 

143 

58 

V.  Randall 

140 

Daughdrill  v.  State 

146 

I".  Redshaw 

72 

Davidson  v.  Xew  Orleans               4 

V.  Reynolds 

89,  90,  91,  93 

Davis  V.  Burgess 

73 

V.  Ridgway 

84 

V.  Pac.  Tele.  Co. 

80 

V.  Roark 

19,23 

V.  State 

95,96 

V.  Roberts 

146 

r.  U.  S. 

69,  77,  136 

V.  Ruggles 

83 

Day  t'.  Day 

73 

I'.  Sheriff 

54,111 

Delim  r.  Ilinman    23, 

36,  112,  116, 

V.  Silvers 

72 

1 

171 

Xll 

Dennis  v.  People 
Devine,  Ex  parte 
Devries  v.  Suniniit 
Dickinson  v.  Farwell 
Diers  v.  Mallow 
Dietrichs  v.  Schau- 
Dilger  V.  Com.        80, 
Dillon  V.  O'Brien 
Dodds  V.  Board 
Doering  v.  State 
Donahoe  v.  Shed 
Doo  Woon,  In  re 
Dougherty  v.  State 
Doughty  V.  State 
Douglass  V.  Barber 
Dow's  Case 
Doyle  V.  Kussell 
Drennan  v.  People 
Duffy  V.  People 
Dunton  v.  Halstead 
Dupont  V.  Pichon 
Durant,  In  re 
D Wiggins  v.  Cook 
Dj'e  V.  Com. 
Dver  V.  State 


J]  AMES  V.  Johnson 

Earl  V.  Camp 
Edginton  v.  U.  S. 
Edwards  v.  Elliott 
Eilenbecker  v.  Plymouth  Co. 
Ela  V.  Shepard 
Elam  V.  Lewi^ 
Elder  v.  Morrison 
Emerick  v.  Harris 
Emer}'  v.  Hapgood 

V.  Chesley 
Englehardt  i'.  State 
English  V.  Caballero 
Entick  V.  Carrington 
Evans  v.  State 


JTAIRCHILDt'.  Case 

Faire  v.  State 
Farley  v.  State 


TABLE   OF   CASES 


[References  are  to  pages.] 

100 
123 

Farnam  v.  Feeley 
Fatheree,  Ex  parte 

69 

145 

65 

Ferez,  In  re                   121 

122, 124 

156 

Ferguson  v.  State 

99 

78 

Terrier,  Petition  of 

6 

36,  171 

Fetter,  In  re 

128 

100,  107,  109 

Field  V.  Ireland 

41 

117,  118 

Filer  v.  Smith 

77,78 

68 

Find  lay  v.  Pruitt 

106 

78 

Firestone  v.  Rice         112, 

113,  116, 

22,  28 

170,  171 

9 

Fisher  v.  McGirr 

7,  11 

170 

V.  Shattuck 

27 

36 

78 

Flagg  V.  People 
Fleetwood  v.  Com. 

143 
79 

9 

Floyd  V.  State 

54 

55 

Ford  V.  Breen 

81 

18 

V.  State 

139 

144 

Forrester  v.  Clarke 

71 

158 

Forster's  Case 

107 

150 
9 

Foss,  Ex  parte 
V.  Hildreth 

125 
158 

24 

Foster  v.  Neilson 

125 

148 

Frank  v.  State 

100 

73 

Franklin  v.  State 

139 

Frazier  v.  Turner 

19 

19 

19 

138 

French  v.  Bancroft 

43 

Frost  V.  Thomas 

50 

Fulton  V.  Staats 

77,  106 

6 

ith  Co.          6 

19 

151 

171 

4 

7,  11,  19,20 

44 

141 

150 

7,  11 

137,  146 

Q.ABLICK  V.  People 
Galvin  v.  State 

140 

72 

Gardner  v.  Hosmer 

24 

V.  Jessop 
Garner  v.  State 

152 

137 

Garver  v.  Ter. 

53 

Gasset  v.  Howard 

22 

Gates  I'.  People 
Geary  v.  Stephenson 
Genner  v.  Sparks 
George  v.  Fellows 
V.  Radford 

144 

69 

43,  94 

159 
40 

Gibson  v.  State 

138 

5                   53 

Giroux  V.  State 

112 

116 

Glazier  v.  Stafford 

152 

132,  135 

Godfrey  v.  State 

145 

G.)l(l  V.  Bissell 
Golden  v.  State 
Goldsmith  v.  Baynard 
Gollobitsch  V.  Rainbow 
Goon  Bow  V.  People 
Gore  V.  People 
Grainger  i".  Ilill 
Grant  r.  Shaw 
Gravely  v.  State 
Gray  v.  Com. 
Green  v.  Kennedy 

V.  Kindy 
Greenough,  In  re 
Griffin  V.  State 
Griswold  v.  Sedgwick 
Groome  v.  Forrester 
Grosvenor  v.  Inhab.  etc 
Grumon  v.  Raymond 
Guidrat  v.  People 
Gurney  v.  Tufts 


JJABERSHAM  v.  State        59,  69 

Hackett  i'.  King  164 

Hadley  v.  Perks  78 

Haggerty  v.  Wilber  94 

Hall  V.  State  138 

Hallinger  v.  Davis  5 

Halstead  v.  Brice  28 

Hamilton  v.  Calder  77 
Handcock  v.  Baker          82,  87,  116 

Handley  v.  State  107 

Hann  r.  Lloyd  19 

Harden  v.  State  133 

Hardtke  v.  State  138 

Hardy  v.  Murphy  75 

Harft  V.  McDonald  75 

Harlan,  Ex  parte  152 

Harris  v.  Hardemann  9 

V.  McReynolds  26 

V.  People  5 
Harrison  v.  State                   98,  100 

Haskins  v.  Young  30 

Hathaway  i'.  Johnson  65 

Hawkins  i'.  Lutton  80 

Harden  v.  Songer  36 

Hayes  v.  Mitchell  79 


85.  106.  10 


TABLE    OF   CASES 

[References  are  to  pages.] 

19,  41    Head  i'.  .Martin 
106,  109    Heckman  v.  Swartz 
152    Hedges  v.  Chapman 

Hedrick  v.  State 
139     Heed  i\  State 
133    Heinrich,  In  re 
42    Heldt  r.  State 
24    Hempstead  Co.  v.  Graves 
133    Henderson  v.  Com. 
132    Hensley  v.  Rose 
59    Herring  v.  Boyle 
24  V.  State 

128    Hershey  v.  O'Neill 
139    Heyward,  In  re 
26    Hibbs,  Ex  parte 
7    Hibler  v.  State 
Hill  V.  People 
14,  28,  58  V.  Taylor 

17    Hines  v.  Chambers 
7    Hirschmann  v.  People 
Hiss  V.  Bartlett 
Hitchcock  V.  Baker 

V.  Holmes 
Hobart  v.  Hagget 
Hobbs  V.  Getchell 
Hogan  V.  Stophlet 
Hoge  V.  People 
Hoke  t'.  Henderson 
Holcomb  V.  Cornish 
Holland  v.  State 
Ho  I  ley  V.  jNIi.x 
Hollon  I'.  Hopkins 
Holmes  v.  Jennisoa 
Hooker  v.  Smith 
Hopt  V.  Utah 
Horton  r.  Moggridge 
Housh  V.  People 
Hubbard  v.  Garner 
V.  Mace 
V.  State 
Hudson's  Case 
Ilurn,  Ex  parte 
Hurtado  v.  California 
Hussey  v.  Danforth 
Hutchinson  v.  Sangster 


Xlll 


108 

22 

77 

99 

140 

122 

143 

32 

74 

23 

165,  166 

162 

43 

128 

125 

130 

5,6 

43 

19 

133 

154 

54 

102 

167 

157 

39 

140 

4 

38,  76 

55,  133 

68,  69,  77 

55 

125 

171 

140,  141,  142 

152 

52,  54,  56 

117 

94 

75 

65 

117 

4 

67 

59,  60 


XIV 


TMASON  V.  Cope 

Ingle  V.  Bell  71 

Iiiglis  V.  Sailors  Snug  Harbor     150 


TABLE   OF   CASES 
[References  are  to  pages.] 
110 


JACKSOX  V.  State 
V.  Wood 

107 
4 

James  v.  State 

106 

Jamison  v.  Gaernett 

79 

Jenkins  v.  State 

141 

Jennings  v.  Fundeburg 
Johnson  v.  State 

1G8 
28 

V.  Stewart 

26 

V.  Tompkins 
Johnston  v.  Com. 

162 
102 

Jones  V.  Jones 

41,  42 

V.  Perry 

4 

V.  Kobbins 

4 

V.  State 

31,  52,  133 

Jourdan  v.  Donahue 

129 

Journey  )'.  Sharpe 
Joyce  V.  Parkhurst 

41 
82 

Jndson  v.  Reardon 

59,  79 

J^AINE,  In  re 

Keating  v.  People 

125 
140 

Keith  V.  Tuttle 

46 

Kelsej'  V.  Parmalee 

15 

Kendall  v.  U.  S. 

9 

Kennedy  v.  Dundee 

22 

V.  State  68 

Kent  V.  Miles  61 

Ker*.  Illinois  10,126,127 

V.  People  9 

Kerbe}'  v.  Denbey  103 

Kernan  v.  State  43 

Kimball,  In  re  152 

Kindred  v.  Stitt  47,  69,  114 

King  V.  Berchet  4 

V.  Ward  172 

Kirbie  e.  State  30,  37,  77 

Kirk  V.  Garrett  77 

Kleinschmidt  v.  Dunphy  5 

Knot  r.  Gay  71 

Kurtz  V.  Moffitt  86 


J^AGRAVE'S  Case 
Lake's  Case 


Lancaster  v.  State 
Lander  v.  Miles 
Lannock  v.  Brown 
Lascelles  v.  Georgia 

V.  State 
League  v.  State 
Ledbetter  v.  State 
Lee  V.  State 
Leggat  V.  Tollervey 
Leigh  V.  Cole 

V.  Webb 
Leighton,  Ex  parte 
Levi,  Ex  parte 
Lev}'  V.  Edwards 
Lewis  V.  City  of  Raleigh 

V.  State 
Liggitt  V.  People 
Linehan  v.  State 
Lockwood  V.  Coysgarne 
Loegrove  v.  State 
Long  v.  State 
Lopez  &  Sattler's  Case 
Lott  V.  Sweet 


9 
24 
141 
106 
90 
126 
126 
5 
31,46 
116,132 
17 
112,  113,  118 
13 
156 
46,  155 
110 


62 

47,78 

136 

139 

150 

136 

68,  85 

9 

87 

122 

45 

9,  126,  127 

79,  80 

46 


]\^|ACDONXELL,  In  re 

Mackalley's  Case 
Mahon  v.  Justice 
Main  v.  McCarty 
Malcolmson  v.  Gibbons 

V.  Scott  128 

Mangold  c.  Thorpe  56 

Marsh  v.  Smith  78 

Marshall  v.  Critico  151 

Marshelsea,  The         .  21 

Matthews  v.  State  100 

May  V.  Shumway  155 

INLiyhew  v.  Parker  59 
Mayor  of  Norwich  v.  Berry        152 

McCandless  v.  State  74 

McCarthy  v.  De  Armitt  69,  78 
McCourt  V.  People                 99,  102 

McCracken  v.  Ansley  41,  43 

McCullough  V.  Com.  82 

McDutfie  V.  Beddoe  64 


TABLE    OF    CASES 

[References  are  to  pages.] 


XV 


McGough  V.  Wellington  2-t 

McKay  v.  Ray  158 

McKenzie  v.  Gibson  6'J 

McKnight,  Ex  parte  126 

McLennon  v.  Ricliardson  82,  90 
McMaliaii  i'.  Green  1G3,  170,  171 
JIcManus,  Ex  parte  30.  37 

McNeil,  Ex  parte  152,  155 

JIcNeil,  The  Case  of  Archibald  155 
ISIcQueen  v.  State  55 

Jlead  V.  Haws  25,  26 

Meek  v.  Pierce  15,  36 

IMerritt  v.  Openheiin  65 

Mesmer  v.  Com.  106,  109 

Mex.  Cent.  Ky.  v.  Pinkney  9 

Meyer  v.  State  162 

Middleton  v.  Price  23 

Miers  v.  State  51 

Miles,  In  re  126,  127 

Miller  v.  Foley  26,  28 

IMillett  I'.  Baker  14,  31, .58 

Missouri,  etc.  R.  Co.  v.  Warner   59 


85 

171 

12 

9 

51,  109,  145 

131 

25 

39 

146 


Robinson 


Mitchell  V.  Lemon 

V.  State 

V.  Tibbetts 
Mix  V.  People 
Mockabee  i'.  Com. 
Mohr's  Case 
Money  i".  Leach 
Montgomery  Co.  v 
Moore  v.  State 
Morrill,  Ex  parte  77 

Morton  v.  Skinner  128 

Mosely  v.  State  55 

Mowr}'  V.  Ciiase  41 

Mullen  V.  Brown  164 

Mundini  v.  State  75 

Jlurdock  I'.  Ripley  106,  109 

Murphy  v.  People  4 

Muscoe  r.  Com.  4,  59,  77 

Myall  V.  Wright  65 

J^EAGLE,  In  re  112 

Neal  V.  Joyner  69,  77 

Nelson  v.  State  11 

Neufeld  v.  Rodeminski  104 


Newell  V.  Whigliam 

23 

New  Orleans  v.  U.  S. 

13 

Nichols  V.  Nichols 

24 

V.  Thomas 

164 

North  V.  People 

106 

QCEAN    STEAMSHIP 

V.  AVilliams 

CO. 

59 

O'Connor  ?'.  Backlin 

117 

Olmstead  r.  Raymond 

54 

O'Malia  i'.  Wentworth 

27 

O'Neil  V.  State 

147 

Osborn  r.  Com. 

143 

Oystead  v.  Shed         91,  9 

2,95 

172 

pADFIELD  V.  Cabell 
Paetz  V.  Dain 

31 
87 

Painter  v.  People 
Papineau  v.  Bacon 
Parris  v.  Com. 

139 
169 
138 

I'arsons  ?).  Lloyd 

22 

Pastor  V.  Regan 
Patterson  v.  State 

106. 

59 

109 

Paul  V.  Vankirk 

2 

•,  36 

Payson  v.  Macomber 

163 

Pearce  i".  Atwood 

19,  30 

People  V.  Adams 
V.  Ah  Teuiig 

17 
52 

V.  Barker 

143 

144 

r.  Bartz 

74,7 

S,  80 

r.  Bemmerly 

136 

V.  Burt 

7 

r,  78 

V.  Campbell 
1'.  Carlton 

27 

152 
106 

V.  Chase 

146 

V.  Cowteral 

96 

V.  Cross 

126 

V.  Curtis 

121 

136 

V.  Davis 

145 

V.  Donahue 

121 

V.  Duck 

139 

V.  Dupree 
V.  Durfee 

96 
106 

)'.  (Jelabert 

143 

r.  Godfrey 

13 

V.  Halev 

51 

XVI 


TABLE    OF    CASES 
[References  are  to  pages.] 


People  r.  Harrington 

116 

Poulk  V.  Slocum 

19 

V.  Haug 

79 

Powers,  In  re 

78 

V.  Hennessey 

133 

V.  Russell 

133 

I".  Hockstim 

69,78 

Pratt  V.  Hill 

59 

V.  Husband 

148 

Prell  V.  McDonald 

33 

V.  Johnson 

75,  76 

Pressley  v.  State 

101 

V.  Kerrigan 

5 

Price  V.  Seeley 

71 

V.  McCoy 

118,  119 

Pruitt  V.  Miller 

170 

V.  McCrea 

139 

Purrington  v.  Loring 

24 

V.  McLaughlin 

137 

Puryear  v.  Com. 

145 

V.  McLean 

30,  37 

V.  Mead 

28 

QUEEN  V.  Downey 

&  Jones    18, 

V.  Miller 

141 

28 

V.  Moore 

30,  47,  49,  50 

Quinn  v.  Heisel 

80 

V.  Morehouse 

71 

V.  Murray 

4,5 

J^ADFORD  V.  State 

146 

V.  Nolan 

102 

Rafferty  v.  Peopl 

e 

7,  24,  57 

V.  Olmstead 

145 

Ramsey  v.  State 

80 

106,  109 

V.  Palmer 

133 

Randall  v.  State 

53 

V.  Payment 

9 

Rawlins  i'.  Ellis 

46,  153 

V.  Pichette 

134 

Read  v.  Case 

86,  90 

V.  Plath 

133 

Reed  v.  Rice 

15,  171 

V.  Pool 

51,78 

Regan  v.  N.  Y.  etc.  R 

R. 

Co.       87 

V.  Pratt 

75 

Reggel,  Ex  parte 

128 

V.  Rose 

11 

Reg.  V.  Brown 

171 

v.  Rowe 

9 

V.  Bird 

101 

V.  Sanford 

146 

V.  Downey 

18,28 

V.  Shan  ley 

29,  30 

V.  Ingham 

4 

V.  Tarbox 

133 

V.  Rowton 

137 

V.  Townsend 

144 

V.  Smith 

145 

V.  TriiU 

71 

Reid  V.  Ham 

126 

V.  Van  Dam 

138 

Reifsnyder  v.  Lee 

117 

V.  Walker 

141 

Reneau  v.  State      85, 

106 

107,  108 

V.  Warren 

20 

Respublica  v.  De  Longcha 

nps    150 

V.  Weaver 

146 

Ressler  v.  Peats 

31,  81 

V.  Wilson 

47,50 

Reuck  V.  McGregor 

69 

V.  Young 

141 

Rex  V.  Backhouse 

102 

Phillips  V.  Fadden 

63,  115,  170 

V.  Brice 

100 

Pigman  v.  State 

141 

V.  Burdette 

133 

Pike  V.  Hanson 

162 

V.  Carroll 

141 

Pinkerton  v.  Verberg 

75 

V.  Drummond 

145,  146 

Pitt  V.  Webley 

46 

V.  Hall 

148 

Plasters  v.  State 

47 

V.  Hyams 

100 

Pond  V.  People 

96 

V.  James 

S8 

Popejoy,  In  re 

81 

V.  Kendall 

15 

Porter  v.  Swindle 

GO 

V.  O'Donnell 

118 

TABLE   OF   CASES 


XVll 


[References 

ire  to  pages.] 

Kex  V.  Osmer 

58 

Shafer  v.  Mumma 

75 

V.  Pike 

146 

Shanley  v.  Wells  71,  78,  84 

89 

135 

V.  Pitman 

141 

Shannahan  v.  Com. 

140 

V.  Smith 

82 

Shannon  r.  Jones 

40,41 

V.  Smithies 

1;J9 

Shattuck  V.  State 

53 

V.  Spriggs 

99, 

101 

Sheldon  v.  Hill 

19 

V.  Turner 

96 

In  re 

123 

V.  Walker 

83 

Shields  v.  State 

17 

V.  Warickshall 

144 

Ship  Richmond  v.  U.  S. 

9 

V.  Weir 

28,  36 

Shorland  v.  Govett 

23 

172 

Reynolds  v.  Orvis 

27 

Short  V.  Symmes 

136 

V.  People 

13 

Shovlin  r.  Com. 

51, 

106 

Rickers  v.  Simcox 

117 

Siegel  V.  Connor 

69 

Rinimer  v.  Green 

152 

Simmerman  r.  State 

69 

Rischer  v.  Meehan 

107 

Simmons  v.  Vandyke 

59 

Roberts  v.  Reilly 

130 

Simons  v.  People 

146 

Robinson,  In  re 

9 

Sims  v.  State 

100 

V.  People 

143 

Skidmore  v.  State 

106 

V.  State 

44 

Slanson,  Ex  parte 

127 

Rockwell  I".  Murray 

82 

Slomer  v.  People 

164 

Roderick  v.  Whitson 

79 

Smith  V.  Clark 

29 

Rohan  v.  Sawin 

59 

V.  Jones 

154 

Rosen  v.  Fischel 

19 

V.  State 

140 

Rowan  v.  State 

4 

Smythe  v.  Banks 

157 

Russell  V.  State 

80 

So.  P.  R.  Co.  V.  Johnson 

139 

Russen  i'.  Lucas 

43 

Spalding  v.  Preston 

117 

Rutland  Lank  r.  Barkei 

158 

Spies  v.  Illinois 
Sprigg  V.  Stump 

15 
34 

C  AGO  V.  Wentworth 
Salisbury  v.  Com. 

4 

Staff,  In  re 

5 

69 

Stalcup  V.  State 

137 

Sanborn  r.  Carleton 

37 

Stanley,  Ex  parte 

121 

Sandow  v.  Jarvis 

92 

Starchman  i'.  State 

17 

Sarah  Way,  In  re 

75 

Starr  v.  Com. 

14.5 

Savage  v.  State 

145 

V.  U.  S. 

3 

,  48 

Schwabacher  v.  People 

98, 

141 

State  V.  Aaron 

145 

Scircle  v.  Neeves 

5L 

,  60 

V.  Adams 

145 

Scott  V.  Eldridge 

78 

V.  Ah  Chuey 

119 

Ex  parte 

9 

V.  Ah  Lee 

146 

V.  People 

145 

I".  Albee 

5 

V.  State 

98 

I'.  Anderson 

46, 

109 

Searles  v.  Viets 

41 

,43 

V.  Archibald 

72 

Secor  V.  Bell 

151 

V.  Atkinson 

17 

Sedgebeer  v.  Moore 

64 

V.  Baldwin 

146 

Semayne's  Case 

90 

,  93 

r.  Bates 

55 

Sewell  V.  State 

139 

!•.  Beebe 

52 

Shadgett  v,  Clipson 

27 

V.  Belk 

51 

112 

XVI 11 


TABLE    OF   CASES 


[References 

ire  to  pages.] 

State  V.  Bland 

105,  109 

State  V.  Glover 

126 

V.  Boon 

98,  99,  100 

V.  Graham 

119,  144 

V.  Bradford 

143 

V,  Grant 

77 

V.  Bradiieck 

139 

V.  Griswold 

16 

V.  Brewster 

9 

V.  Groning 

99 

V.  Brown 

53,  1-13 

V.  Gu}' 

79 

V.  Bryant 

106,  107 

V.  Hall 

126,  130 

V.  Buck 

155 

V.  Harvey 

133 

V.  Caldwell 

47,  49 

V.  Hecox 

99 

V.  Campbell 

71 

V.  Henry 

99,  103 

V.  Cantieny 

57 

V.  Holmes 

148 

V.  Carmen 

5 

V.  Hooker 

52 

V.  Chee  Gong 

134 

V.  Hudson 

128 

V.  Clirisp 

76 

V.  Hull 

137 

V.  Conners 

99 

V.  Hunter 

53,  170 

V.  Craine 

146 

V.  Hutchinson 

143 

V.  Creson 

137 

V.  James 

4,  56 

V.  Curtis 

47,  50 

V.  Jenkins 

97 

V.  Daniel 

146 

V.  Jones 

28,  52 

V.  Davidson 

133 

V.  Kaub 

17 

V.  Davis 

5,  53 

V.  Kaufman 

5 

V.  Day 

9,  143 

V.  Kealy 

9,126 

V.  Deniston 

171 

V.  Keggon 

136 

V.  Dennis 

52 

V.  Kelly 

13 

V.  Dierberger 

106,  107,  135 

V.  Killett 

33,  34 

V.  Dietz 

106,  108 

V.  Komstell 

143 

V.  Donohoo 

138 

V.  Kring 

IIG 

V.  Dodley 

46 

V.  Lafferty         76,  82, 

106,  109 

V.  Drake 

58 

V.  Lapage 

137,  138 

V.  Dula 

47,  49,  50 

V.  Leach 

52 

V.  Edwards 

17,  139 

V.  Lewis 

54 

V.  Eliott 

146 

V.  Mahon          86,  106, 

107,  109 

V.  Estis 

52 

V.  Mann 

34 

V.  Fair 

137 

V.  McAfee 

80 

V.  Fiske 

141 

V.  McDonald 

19 

V.  Flanagan 

73 

V.  McGee 

137 

V.  Flynn 

17 

V.  McKinney 

139 

V,  Fowler 

145 

V.  Miller 

47,  106 

V.  Frederic 

139 

V.  INIiner 

140 

t'.  Freeman 

52,  59,  60,  76 

V.  flooring 

90 

V.  Fuller 

lOG,  109 

I'.  Morgan 

69 

V.  Garrand 

145 

V.  Mowry 

68 

V.  Garrett 

50,  52,  119 

V.  Nutting 

12 

V.  Garvey 

141 

V.  O'Brien 

99 

V.  Gay 

47 

V.  Oliver 

90 

V.  German 

133 

V.  Parker 

169 

TABLE   OF   CASES 


XIX 


State 


[References  are  to  pages.] 

V.  Pate 

106 

State  V.  Weber 

95 

.  Patterson 

9 

V.  Wenzell 

27 

.  Pearce 

145 

V.  West 

78,  140 

.  Phelps 

143 

r.  White 

73,  137 

Phiniiey 

46,  47,  48 

V.  Williams 

80,  95,  97 

Pomeroy 

17 

V.  Wilson 

146 

.  Potts 

97 

V.  Woods 

KtO 

Powell 

100 

V.  Worden 

5 

Pugh 

no 

Stedman  v.  Crane 

94,90 

Reed 

145,  146 

Steenerson  v.  Polk  Co. 

Com'rs    39, 

.  Reid 

99 

47 

Richter 

130 

Stephens  v.  Wilkins 

7,  11,19,  20 

Ritchie 

53 

Stetson  V.  Packer 

7,  11,  28 

Rodman 

139 

Stevenson  v.  Smith 

65,  158 

Rogers 

132 

Stewart  v.  State 

1.38 

Rose 

51 

Stone  V.  Carter 

66 

Ross  &  Mann 

9 

Stuart  V.  Harris 

117 

Russell 

79 

Stutsman  Co.  v.  Wallace            168 

Schleagel 

138 

Sullivan  v.  State 

145 

Schlottman 

75 

Sultan,  In  re 

130 

Schuerinanu 

74 

Sumner  v.  Beeler 

21 

Shaw 

90 

Sutton  V.  Allison 

66 

Shelton 

46,  136,  145 

Swart  r.  Kimball 

5 

Sigman 

85,  106 

Swift  I'.  Chamberlain 

152,  157 

Simmons 

9 

Smith 

9,  10,  89,  134 

'J'AAFE  V.  Kyne 

73 

Somnier 

146 

V.  Slevin 

172 

.  Sorrel 

136 

Tackett  v.  State 

31 

Spaiilding 

47,  49 

Tallemon  i'.  Cardenas 

158 

Stalcup 

112,  116,  171 

Tarleton  v.  Fisher 

22 

Stancill 

50 

Tarvers  v.  State 

46 

Stewart 

126 

Tate  V.  State 

61 

Stoiiderman 

82 

Taylor  v.  Porter 

4 

Stuth 

75 

r.  Taintor 

86 

Symes 

77 

Teagarden  i-.  Graham 

69 

Tatro 

140,  143 

Tefft  I'.  Ashbaugh 

11 

Taylor 

77,  134 

Tellefson  v.  Fee 

19,  21 

Tie'e 

145 

Thomas  r.  Kinkead 

85,  107 

Townsend 

47,  49,  50 

Thompson  v.  State 

147 

Vanderpool 

125 

Thompson's  Case 

155 

.  Van  Tassel 

17 

Thurston  v.  Adams 

19 

.  Walker 

140 

I'.  Jlartin 

21 

Warn  ire 

54 

Tickner  i'.  People 

99 

.  Ward 

36,  37,  138 

Tillman  v.  Beard 

79 

.  Warner 

72 

Timmons  v.  State 

100 

.  Warrea 

95 

Tiuer  v.  State 

107,  108 

XX 

TABLE   OF   CASES 
[Refereuces  are  to  pages.] 

Toole}''s  Case 

77 

WADE  V.  Chaffee 
Wahl  V.  Walto 

77 

Topeka  v.  Heitman 

72 

n 

83 

Towns  V.  State 

134 

Wakely  v.  Hart 

69 

Tracy  v.  Seamans 

41 

Walker  v.  State 

98,  99, 

100 

V.  Williams 

33,  78 

Walters  i'.  State 

134 

Trask  v.  People 

17 

Ward  V.  State 

139 

Tremblay  i\  Graham 

6.5 

Ware  v.  Leveridge 

74 

Trustees  v.  Schroeder 

4 

Warner  v.  Grace 

78 

Tubbs  V.  Tukey 

23,  29,  63 

V.  Riddiford 

41 

Turner,  In  re 

152 

V.  State 

141 

Twilley  v.  Perkins 

59 

Warren  v.  Kelley 

21 

Tyson,  In  re 

64 

Wartner  v  State 
Watson  V.  Bodell 

5 

21 

UNION  DEPOT  ETC.  CO. 

V.  State 

170, 

171 

V.  Smith 

79 

V.  Watson 

23 

United  States  v.  Anthony    147,  108 

Webb  V.  State 

29 

V.  Bannister 

64 

Welby  V.  Beard 

153 

V.  Benner 

44,  151 

Wells  ■('.  Jackson 

30 

V.  Bevans 

13 

Welsh  V.  Wilson 

97 

V.  Boyd 

69 

Wentworth  v.  People 

52 

I'.  Brooks 

75 

West  V.  Cabell 

26,  28,  56 

V.  Clark 

85,  107 

Westervelt  v.  Gregg 

4 

V.  Dickerman 

12 

Wheelock  v.  Archer 

172 

V.  Faw 

90 

White  V.  Edmunds 

111 

V.  FuUheart 

106 

Ex  parte 

129 

V.  Hart 

76,  153 

In  re 

123, 

138 

V.  Jailer 

47,  49 

V.  Kent 

79 

V.  Kirby 

153 

V.  State 

140,  144, 

146 

V.  Lafontaine 

150 

V.  Vallely 

1-30, 

131 

V.  Ortiga 

151 

Whitehead  v.  Keyes 

24,  4^ 

,  67 

V.  Raucher 

120,  125 

Whittaker  v.  Stute 

146 

V.  Rice 

47,  49,  50 

Wiggins  V.  Norton 

59 

V.  Taylor 

5 

Wilcox  V.  Nolze 

131 

V.  Watts 

125 

Willard  v-  State 
Williams  v.  Com. 

133 
144 

•yANDERPOOL  v. 
Van  Straaten  v. 

State         1G4 

V.  Jones 

42 

People      140 

V.  People 

133, 

136 

Vaughn  v.  Com. 

146 

V.  Spencer 

94 

V.  Scade 

6 

V.  State       5,  17, 

45,  57,  77 

78, 

Veneman  v.  Jones 

79 

106,  107, 

109 

Vincent,  Ex  parte 

98 

V.  Tidball 

26 

V.  Stinehour 

167 

Wills  V.  Jordan 

78 

Virginia,  Ex  parte 

4 

V.  State 

13 

Von  Der  Ahe,  In  re 

86 

Wilmarth  v.  Burt    22,  56,  152, 

163 

Voorhees,  la  re 

130 

Wilson  V.  Barnhill 
Ex  parte 

66 
70 

TABLE   OF    CASES 

xxi 

[References  are  to  pages.] 

"Wilson  V.  State 

60,  70 

AVoolfolk  I'.  State 

118 

V.  Tucker 

30 

Work  V.  State 

5 

V.  United  States 

139 

Wrexford  r.  Smith  \ 

69 

Wiltshire  v.  Lloyd 

]52 

Wright  V.  Com. 

68,78 

Wiltze  V.  Holt 

60 

V.  Court 

112,  116 

Winkler  v.  State 

27 

t'.  Keith 

45,56 

Winslow  V.  State 

133 

V.  State 

107,  137 

Wise  V.  Withers 

7,  11 

Wroe  V.  State 

145 

Wolff.  State 

51 

Wood  V.  Graves 

163 

YATES  V.  People 

49 

V.  Neale 

155 

Young  V.  Com. 

137 

V.  Ross 

27 

THE  LAW  or  ARREST 


CHAPTEK  I 
THE   RIGHT   OF    PERSOXAL  LIBERTY 

§  1.  Definition.  —  The  right  of  personal  liberty 
consists  in  the  power  of  locomotion,  of  changing 
situation,  or  moving  one's  person  to  whatsoever 
place  one's  own  inclination  may  direct,  without 
imprisonment  or  restraint,  unless  by  due  course  of 
law.i 

§  2.  A  Natural  Right.  —  This  right  is  a  natural 
one  such  as  has  ever  been  the  birthright  of  every 
freeman,  even  in  those  ages  before  civilization  had 
exercised  its  softening  influence  upon  man's  pas- 
sions, and  is  now  guarded  with  jealous  care  by  that 
inexorable  mistress,  "  the  law  of  the  land. " 

§  3.  Secured  by  Magna  Charta.  —  It  is  a  right 
which  was  stoutly  maintained  by  our  English  an- 
cestors, and  is  one  of  the  rights  which  they  secured 
to  themselves  by  the  famous  Magna  Charta  (Great 

^1  Blackstoiie's  Commentaries,  135. 
1 


2  THE    LAW   OF   ARREST 

Charter),  which  was  given  to  the  barons  of  England 
by  King  John,  in  1215,  under  persuasion  of  the 
sword. 

The  right  of  personal  liberty  as  reduced  to  written 
evidence  by  this  great  charter  was  not  a  new  law, 
but  was  rather  a  correction  of  abuses  of  the  right, 
which  then  endangered  the  liberty  of  the  English 
people.  The  language  of  the  Magna  Charta  is,  that 
no  freeman  shall  be  taken  or  imprisoned  but  by  the 
lawful  judgment  of  his  equals,  or  by  the  law  of  the 
land. 

§  4.  Strengthened  by  "  Petition  of  Right "  and 
"Habeas  Corpus  Act."  —  By  the  Petition  of  Eight 
in  1628,  it  was  further  enacted  that  no  freeman 
should  be  imprisoned  or  detained  without  cause 
shown,  to  which  he  might  make  answer  according 
to  law. 

Following  this  legislative  enactment  came  the 
act  of  1664,  by  which  any  one  restrained  of  his 
liberty  by  order  or  decree  of  any  illegal  court,  or 
even  by  the  command  of  the  king  himself  in  person, 
or  by  warrant  of  the  council  board,  or  of  any  of  the 
privy  council,  should  have,  upon  demand  of  his 
counsel,  a  writ  of  habeas  corpus  (you  may  have  the 
body)  to  bring  his  body  before  the  court  of  king's 
bench,  or  common  pleas,  who  should  determine 
whether  the  cause  of  his  commitment  be  just,  and 
thereupon  do  justice  to  the  party  accused.  And  by 
the  act  of  1679,  commonly  known  as  the  "  Habeas 


THE   RIGHT    OF    PERSONAL   LIBERTY  3 

Corpus  Act,"   the   methods  of  obtaining  this  writ 
were  plainly  pointed  out. 

§  5.  English  Bill  of  Rights.  —  Excessive  Bail  Pro- 
hibited. —  To  guard  against  the  evasion  of  this  act 
it  was  further  enacted  in  the  English  Bill  of  Rights, 
in  1689,  that  excessive  bail  should  not  be  required. 

§  6.  American  Bill  of  Rights.  —  Due  Process  of 
Law.  —  This  right  of  immunity  from  illegal  re- 
straint was  brought  to  the  American  shores  by  our 
forefathers  and  became  a  part  of  the  common  law  of 
this  country.  Subsequently  it  was  incorporated  into 
the  American  Bill  of  Rights,  — as  embraced  in  the 
lirst  ten  amendments  to  the  Constitution  of  the 
United  States,  — by  the  adoption  of  the  fifth  amend- 
ment, which  provides  that  no  person  shall  be  de- 
prived of  his  liberty  without  due  process  of  law. 
And  a  similar  provision  exists  in  all  the  State 
constitutions.^ 

Due  process  of  law  means  that  whatever  the 
legal  proceeding  may  be,  it  must  be  enforced  by 
public   authority,    whether   sanctioned    by   age   or 

2  Article  12  of  the  Bill  of  Rights  in  the  Constitution  of 
Massachusetts,  ^vhich  was  enacted  about  seven  years  before 
Amendment  5  of  the  Constitution  of  the  United  States  was 
adopted,  declares  "no  subject  shall  be  arrested,  imprisoned, 
despoiled,  or  deprived  of  his  property,  immunities,  or  privi- 
leges, put  out  of  the  protection  of  the  law,  exiled  or  deprived 
of  his  life,  liberty,  or  estate,  but  by  the  judgment  of  his 
peers,  or  the  law  of  the  land."  This  Bill  of  Kights  was 
fashioned  from  Magna  Charta. 


4  THE   LAW   OF   ARREST 

custom,  or  newly  devised  in  the  discretion  of  the 
legislative  power,  in  furtherance  of  the  general 
public  good,  which  regards  and  preserves  the  prin- 
ciples of  liberty  and  justice.^  It  means  that  neither 
life,  liberty,  nor  property  can  be  taken,  nor  the  en- 
joyment thereof  impaired,  except  in  the  course  of 
the  regular  administration  of  the  law  in  the  estab- 
lished tribunals.*  Therefore  an  arrest  without  a 
warrant,  where  one  is  required  by  law,  is  not  due 
process  of  law.^ 

Eelating  to  the  higher  crimes,  due  process  of  law 
is  said  to  denote  a  lawful  indictment  or  presentment 
of  good  and  lawful  men,*^  and  a  public  trial  by  jury,^ 

*  Hurtado  v.  California,  110  U.  S.  516;  Rowan  v.  State, 
30  Wis.  12.9;  King  v.  Berchet,  1  Show.  (Eng.  K.  B.)  106; 
Reg.  V.  Tngham,  5  B.  &  S.  (Eng.  Q.  B.)  257  ;  Westervelt  v. 
Gregg,  12  N.  Y.  202 ;  Bank  of  Columbia  v.  Okely,  4  Wheat. 
(U.  S.)  235 ;  Brown  v.  Levee  Commissioners,  50  Miss.  468; 
Davidson  v.  New  Orleans,  96  U.  S.  97. 

*  Ex  parte  Virginia,  100  U.  S.  366. 

6  Muscoe  v.  Com.,  86  Va.  443;  State  v.  James,  78  N.  C. 
455 ;  Trustees  v.  Schroeder,  58  111.  353. 

^  Coke,  2d  Inst.  50 ;  affirmed  in  Jones  v.  Robbins, 
8  Gray  (Mass.),  329,  in  which  see  dissenting  opinion  by 
Justice  Merrick  ;  disaffirmed  in  Hurtado  v.  California,  supra 
cit.,  in  which  see  dissenting  opinion  by  Justice  Harlan.  See 
also  Taylor  v.  Porter,  4  Hill  (N.  Y.),  140  ;  Hoke  v.  Hender- 
son, 4  Dev.  (N.  C.)  1 ;  Jones  v.  Perry,  10  Yerger  (Tenn.),  59  ; 
3  Story  on  Const.  U.  S.  661  ;  2  Kent's  Com.  13;  Saco  v. 
Wentworth,  37  Me.  172  ;  Emerick  v.  Harris,  1  Binn.  (Pa.) 
410  ;  Murphy  v.  People,  2  Cow.  (N.  Y.)  815 ;  Jackson  v. 
Wood,  2  Conn.  819  ;  Beers  v.  Beers,  4  Couu.  535. 

"!  People  V.  Murray,  89  Mich.  276. 


THE   RIGHT   OF   PERSONAL  LIBERTY  5 

before  a  court  of  competent  jurisdiction.  Therefore, 
where  the  court  at  the  trial  of  one  charged  with 
murder,  directed  an  officer  to  stand  at  the  door  of 
the  court-room  "  and  see  that  the  room  is  not  over- 
crowded, but  that  all  respectable  citizens  be  ad- 
mitted, and  have  an  opportunity  to  get  in  when 
they  shall  apply,"  it  was  held  that  the  right  of  the 
accused  to  a  public  trial,  guaranteed  to  him  by  the 
constitution,  had  been  violated.*^ 

§  7.  Constitutional  Right  cannot  be  Waived.  — 
As  a  general  rule  the  accused,  at  least  in  a  felony 
case,  cannot  waive  his  constitutional  right  to  a  trial 
by  a  jury  of  twelve  men  ;  and  it  is  the  duty  of  courts 
to  see  that  the  constitutional  rights  of  a  defendant 
in  a  criminal  case  shall  not  be  violated.^  And  the 
fact  that  the  defendant  was  negligent  in  raising  his 
objections  is  not  material.  ^*^ 

8  People  V.  Murray,  80  Mich.  276. 

9  Hill  V.  People,  16  Mich.  351  ;  Canceini  v.  People,  18 
N.  Y.  128;  Work  r.  State,  2  Ohio  St.  296  ;  United  States  r. 
Taylor,  3  McCrary  (U.  S.  C.  C),  500  ;  Harris  r.  People,  128 
111.  589  ;  Brown  v.  State,  8  Blackf.  (Ind.)  561  ;  League  ;;. 
State,  36  IMd.  257 ;  Allen  v.  State,  54  Ind.  461  ;  Wartner  i-. 
State,  102  Ind.  51 ;  Swart  v.  Kimball,  43  Mich.  443  ;  State  v. 
Carman,  63  Iowa,  130 ;  Bond  v.  State,  17  Ark.  290  ;  State 
V.  Davis,  66  Mo.  684;  Bell  r.  State,  44  Ala.  3.03  :  Williams 
I'.  State,  12  Ohio  St.  622  ;  Kleinschmidt  r.  Dunphy,  1  Mont. 
118.  Contra:  State  v.  Worden,  46  Conn.  319;  Ilallinger  c. 
Davis,  146  U.  S.  314;  In  re  Staff,  63  Wis.  2S5;  State  v. 
Kaufman,  51  Iowa,  578 ;  People  v.  Kerrigan,  73  Cal.  222  ; 
State  V.  Albee,  61  :N^.  H.  423. 

10  Hill  V.  People,  16  Mich.  351. 


6  THE  LAW   OP   ARREST 

In  courts  not  of  record,  however,  as  in  justices' 
courts,  a  trial  by  less  than  twelve  men  is  legal.  ^^ 

The  provisions  in  Article  III,  Constitution  of 
the  United  States,  respecting  the  trial  of  crimes 
by  jury,  relates  to  the  judicial  power  of  the  United 
States  alone,  and  does  not  apply  to  State  courts.  ^^ 

§  8.  Personal  Liberty  demands  Restraint.  —  The 
assurance  of  personal  liberty  does  not  license  any 
person  to  be  free  from  restraint ;  on  the  contrary, 
it  demands  such  necessary  restraint  of  persons  as 
will  insure  the  utmost  amount  of  personal  liberty 
to  each,  for  the  safety  and  well-being  of  society  are 
paramount  to  individual  liberty. 

§  9.     The  Limit  of    Governmental    Control.  —  The 

government  has  the  right  to  control  its  subjects  up 
to  that  point  where  society  is  safe,  but  it  has  no 
right  to  go  beyond  the  point  of  safety.  ^^  Any  law 
which  restrains  a  man  from  doing  mischief  to  his 
fellow-man  increases  the  personal  liberty  of  man- 
kind, but  every  wanton  and  causeless  restraint  of 
the  will  of  the  subject  is  a  degree  of  tyranny,  i"* 

§  10.  Rights  of  Subjects  are  Equal.  —  It  is  one 
of  the  most  commendable  features  of  our  republican 

"  Vaughn  v.  Scade,  30  Mo.  600 ;  Hill  v.  People,  16  Mich. 
351. 

12  Eilenbecker  v.  Plymouth  Co.,  134  U.  S.  31 ;  Edwards 
V.  Elliott,  21  Wall.  (U.  S.)  557. 

i»  Petition  of  Ferrier,  103  111.  373. 

"  1  Bl.  Com.  126. 


THE   RIGHT   OF   PERSONAL    LIBERTY  7 

form  of  government  that  our  laws  are  equal,  just, 
and  impartial,  and  that  the  humblest  member  of 
society  has  rights  and  remedies  for  the  infraction 
of  those  rights,  that  are  not  exceeded  by  the  rights 
or  remedies  of  any  other  man,  no  matter  how  high 
his  station.  No  officer  of  the  law  can,  with  im- 
punity, set  those  rights  at  defiance.  All  officers  of 
the  government,  from  the  highest  to  the  lowest,  are 
creatures  of  the  law,  and  are  bound  to  obey  it. 

§11.  Rights  must  be  Respected.  —  It  is,  there- 
fore, removed  from  the  whim  or  ignorance  of  any 
magistrate  to  issue,  or  of  any  person  to  serve  any 
legal  process  whatever  unless  the  provisions  of  law 
be  strictly  followed  ;  and  any  restraint  of  a  person, 
except  by  due  process  of  law,  amounts  to  a  false 
imprisonment,  for  which  both  magistrate  and  officer 
may  be  liable  in  damages  to  the  person  deprived  of 
his  liberty,  and  the  imprisonment  may  also  be  made 
the  subject  of  a  criminal  prosecution.  ^^ 

15  Fislier  v.  McGirr,  1  Gray  (Mass.),  45  ;  Stetson  r.  Packer, 
7  Cush.  (Mass.)  564;  Stephens  r.  Wilkins,  6  Pa.  St.  2fJ0; 
Emery  v.  Hapgood,  7  Gray  (Mass.),  55;  Rafferty  i\  People, 
69  111.  Ill  ;  Gurney  v.  Tufts,  37  Me.  l;]0;  Wise  v.  Withers, 
3  Cranch  (U.  S.),  337;  Entick  v.  Carriiigton,  2  Wils.  (Eng. 
C.  P.)  275  ;  Groome  r.  Fom-sler,  5  M.  &  S.  (Eng.  K.  B.) 
314  ;  Allen  v.  Gray,  11  Conn.  95. 


THE   LAW    OP   ARREST 


CHAPTER  II 

THE  ISSUANCE   AND   SERVICE   OF  LEGAL 
PROCESS 

Process. 

§12.  Definition.  —  Process  is  a  writ,  warrant, 
subpoena,  or  other  formal  writing  issued  by  author- 
ity of  law ;  also  the  means  of  accomplishing  an  end, 
including  judicial  proceedings.^ 

The  word  "  process  "  is  also  used  as  a  general  term 
to  cover  all  the  written  means  of  compelling  a  de- 
fendant to  appear  in  court,  whether  in  a  civil  or  in 
a  criminal  action. 

§  13.     statutes     abrogate     the     Common     Law.  — 

Any  process  issued  according  to  the  rules  of  the 
common  law,  and  any  act  done  under  precedent  of 
the  weight  of  authority  as  laid  down  in  the  judi- 
cial decisions  will  be  valid,  and  will  justify  all 
persons  acting  therein,  unless  the  authority  of  such 
common  law  and  judicial  precedents  has  been  ab- 
rogated by  constitutional  legislative  enactments ; 
for  where  the  common  law  and  the  statutes  are  in 
conflict,  the  latter  always  control. 

^  Gollobitsch  V.  Rainbow,  84  Iowa,  567. 


the  issuance  and  service  of  legal  process    9 
Jurisdiction. 

§  14.  Procured  by  Stratagem  or  Fraud.  —  No 
court  cau,  at  common  law,  exercise  jurisdiction 
over  a  party  in  a  civil  case  unless  he  is  served 
with  process  within  the  territorial  jurisdiction  of 
the  court  or  voluntarily  appears.^  But  a  person 
cannot  claim  immunity,  in  a  criminal  case,  be- 
cause he  was  enticed  into  the  jurisdiction  by 
stratagem  and  fraud,^  except  in  case  of  an  extradi- 
tion under  a  treaty,  it  being  well  established  that 
when  a  prisoner  is  before  a  court,  legally  charged 
with  a  crime  for  which  he  is  to  be  tried,  the  court 
will  not  be  obliged  to  inquire  how  he  came  there; 
and  the  want  of  authority  for  a  prisoner's  arrest 
cannot  protect  him  from   prosecution.*     So   where 

2  ^lex.  Cent.  Ry.  v.  Pinkney,  149  U.  S.  194  ;  Kendall  v. 
United  States,  12  Pet.  (U.  S.)  Si!;  Harris  v.  Hardeman,  14 
How.  (U.  S  )  334. 

8  Ex  parte  Brown,  28  Fed.  Rep.  (U.  S.)  653 ;  In  re  Doo 
Woon,  18  Fed.  Rep.  (U.  S.)  898. 

4  Dow's  Case,  18  Pa.  St.  37  ;  Com.  v.  Wait,  131  Mass.  417 ; 
Ex  parte  Scott,  9  B.  cSc  C.  (Eng.  K.  B.)  446  ;  Lopez  &  Bat- 
tlers' Case,  1  Dearsly  &  Bell's  .C.  C.  (Eng.)  525;  State  v. 
Smith,  1  Bailey  (S.  C.),  283;  State  v.  Brewster,  7  Vt.  118  ; 
In  re  Durant,  00  Vt.  176  ;  State  v.  Patterson,  116  Mo.  505  ; 
State  V.  Day,  58  Iowa,  678 ;  State  v.  Ross  &  Mann,  21  Iowa, 
467;  State  v.  Kealy,  89  Iowa,  94;  Ship  Richmond  v.  U.  S., 
9  Cranch  (U.  S.),  102  ;  Mahon  v.  Justice,  127  U.  S.  700  ; 
Ker  v.  People,  110  111.  627;  IMix  v.  People,  26  111.  34; 
People  V.  Payment,  109  ]Mich.  553;  Ex  parte  Barker,  87  Ala. 
4;  Lagrave's  Case,  14  Ahb.  Pr.  x.  s.  (X.  Y.)  333,  note; 
People  /".  Rowe,  4  Parker  Cr.  (N.  Y.)  253.  C mtra :  In  re 
Robinson,  29  ]N'eb.  135  ;  State  v.  Simmons,  39  Kan.  262. 


10  THE   LAW   OF   ARREST 

an  embezzler  was  kidnapped  from  Peru  and  brought 
forcibly  to  the  United  States,  without  the  existing 
treaty  powers  having  been  invoked,  although  an 
ample  treaty  of  extradition  existed  between  that 
country  and  the  United  States,  the  State  court  may 
proceed  to  try  the  offender,  and  the  United  States 
courts  can  give  him  no  relief.^ 

And  where  a  felon  convict,  after  being  sentenced 
to  be  executed  for  stealing  a  slave,  was  pardoned, 
upon  the  condition  that  he  immediately  leave  the 
State  and  never  return,  he  afterward  violated  the 
condition  by  returning  to  the  State  wherein  he  was 
pardoned ;  whereupon  the  governor  of  that  State 
offered  a  reward  for  his  capture.  He  fled  from 
that  State  to  an  adjoining  State,  whence  he  was 
forcibly  taken  without  process  and  brought  back  to 
the  State  where  the  crime  was  committed,  and  his 
motion  for  a  discharge  from  arrest  was  refused.^ 

§  15.  Procured  by  Illegal  Arrest.  —  Where  a 
party  is  taken  from  his  own  house  for  drunken- 
ness to  answer  to  a  complaint  for  that  offence, 
which  had  been  duly  made  and  received,  it  is  im- 
material upon  the  question  of  his  guilt  and  punish- 
ment therefor,  whether  he  had  been  arrested  legally 
or  illegally,  or  arrested  at  all  before  the  complaint 
was  made.' 

5  Kerv.  Illinois,  119  U.  S.  436. 

6  State  V.  Smith,  1  Bailey  (S.  C),  283. 
'  Com.  V.  Conlin,  184  Mass.  195. 


THE   ISSUANCE   AND    SERVICE   OF   LEGAL   PROCESS     11 

§  16.     Effect    of    "Want    of    Jurisdiction.  —  If    the 

magistrate  issuing  the  process  has  no  jurisdiction 
of  the  subject-matter,  the  i^rocess  is  not  merely 
voidable  but  wholly  void,  and  an  officer  acting 
under  it  is  a  trespasser,^  as  is  also  the  magis- 
trate who  issues  it,^  and  the  party  making  the 
complaint.  ^^ 

And  an  unconstitutional  statute,  purporting  to 
give  jurisdiction,  will  not  justify  either  magistrate 
orofficer.il  But  lack  of  jurisdiction  of  the  person 
will  not  invalidate  the  process  if  the  defect  does 
not  appear  on  its  face.  ^^ 

§  17.  Finding  Prisoner  Guilty  of  Lesser  Offence 
than  that  Charged.  —  If  an  offender  is  lawfully 
before  a  court  charged  with  an  offence  of  which 
the  court  has  jurisdiction,  he  may,  upon  trial,  be 
found  guilty  of  a  lesser  offence  which  is  a  degree  of 
the  greater  crime,  or  relates  to  the  same  transac- 
tion, if  it  is  charged  in  a  separate  count,  of  which 
the  court  otherwise  would    have  no  jurisdiction.  ^^ 

*  Fisher?'.  McGirr,  1  Gray  (Ma.ss.),  4.5;  "Wise  v.  Withers, 
3  Cranch  (U.  S.),  337;  Eutick  r.  Carriugton,  2  Wils. 
(Eng.  C.  P.)  275. 

9  Stetson  V.  Packer,  7  Cush.  (Mass  )  564. 

^0  Stephens  v  .Wilkins,  6  Pa.  St.  260;  Emery  v.  Hapgood, 
7  Gray  (Mass.),  55. 

'1  Fislier  v.  McGirr,  supra  cit. 

12  Tetft  V.  Aslibaugh,  13  111.  602;  Clarke  v.  May,  2  Gray 
(Mass.),  410. 

18  People  V.  Rose,  15  N.  Y.  Suppl.  815.  But  see  Nelson 
V.  State,  10  Humph.  (Tenu.)  518. 


12  THE   LAW  OP   ARREST 

Although  if  the  lesser  crime  were  charged  as  a  sep- 
arate offence  the  court  would  not  have  jurisdiction. 
But  where  the  greater  and  lesser  offence  are  con- 
tained in  the  same  count,  a  court  may  not  con- 
vict of  the  lesser  crime  which  is  not  within  its 
jurisdiction.^* 

§  18.  Foreign  Vessels.  —  A  foreign  merchant  ship 
coming  within  our  harbors  is  subject  to  our  local 
jurisdiction  the  same  as  any  foreign  private  per- 
son. ^^  But  over  a  public  ship,  such  as  a  man-of- 
war,  a  State  court  in  whose  port  the  ship  is  can 
never  have  jurisdiction. 

§  19.  Ceded  Territory.  —  Over  a  locality  ceded 
by  a  State  to  the  United  States,  the  jurisdiction 
of  the  courts  of  the  ceding  State  does  not  extend, 
except  by  a  special  reservation  in  the  ceding  act; 
and  a  reservation  in  such  act,  of  concurrent  juris- 
diction to  serve  in  the  ceded  locality  any  civil  or 
criminal  State  processes,  does  not  take  from  the 
United  States  its  exclusive  legislative  and  judicial 
authority ;  and  an  offence  therein  committed  is 
triable  in  the  United  States  courts  alone.  ^^ 

The  federal  courts  also  have  exclusive  jurisdic- 
tion over  crimes  committed  within  parts  of  a  State 
ceded  for  the  purpose  of  arsenals,  dockyards,  forts, 

"  State  V.  Nutting,  16  Vt.  261. 
"  U.  S.  V.  Dickerman,  92  U.  S.  520. 
i«  Mitchell  V.  Tibbetts,  17  Pick.  (Mass.)  298,  referring  to 
the  Charlestowu  navy  yard. 


THE    ISSUANCE   AND   SERVICE   OF   LEGAL   PROCESS     13 

magazines,  postoffices,  and  all  other  public  build- 
ings of  the  United  States.  ^" 

So  a  State  court  has  no  jurisdiction  of  murder  in 
a  fort  ceded  to  the  government. -^^ 

Arrest. 

§20.  Modes  of  making.  —  An  arrest  may  be 
made  in  four  ways :  1.  By  warrant ;  2.  By  an 
officer  without  warrant;  3.  By  a  private  person 
also  without  warrant ;  4.    By  a  hue  and  cry.  ^° 

When  the  offender  is  not  likely  to  abscond  before 
a  warrant  can  be  obtained,  it  is  in  general  better  to 
apprehend  him  by  a  warrant  than  for  a  private  per- 
son or  officer  to  arrest  him  of  his  own  accord,  because 
if  the  justice  should  grant  his  warrant  erroneously, 
no  action  lies  against  the  party  obtaining  it.^^ 

AVarrants. 

§21.  Search  Warrant.  —  Definition.  —  A  search 
warrant  is  a  w^arrant  requiring  the  officer  to  whom 
it  is  addressed  to  search  a  house,  or  other  place,  ^^ 

"  U.  S.  V.  Bevans,  3  Wheat.  (U.  S.)  38G;  New  Orleans 
V.  U.  S.,  10  Pet.  (U.  S.)  711;  Clay  v.  State,  4  Kan.  54; 
Wills  V.  State,  3  Heisk.  (Tenn.)  14'J  ;  Reynolds  i-.  People, 
1  Col.  180  ;  People  v.  Godfrey,  17  Johns.  (N.  Y.)  230. 

18  State  V.  Kelly,  76  Me.  331. 

"  4  Bl.  Com.  290. 

20  Leigh  V.  Webb,  3  Esp.  (Eng.  N.  P.)  16G. 

21  In  California  it  has  been  held  that  a  search  warrant 
may  be  issued  to  search  a  person.  Collins  v.  Lean,  OS  Cal. 
284. 


14  THE   LAW   OF   ARREST 

therein  specified, ^^  for  property  therein  alleged  to 
have  been  stolen,  and  if  the  same  shall  be  found 
upon  such  search,  to  bring  the  goods  so  found, 
together  with  the  body  of  the  person  occupying 
the  same,  who  is  named,  before  the  justice  or 
other  officer  granting  the  warrant,  or  some  other 
justice  of  the  peace,  or  other  lawfully  authorized 
officer.  ^^ 

§  22.  Procedure  in  Issuing.  —  It  issues  on  a 
complaint,  made  on  oath  or  affirmation,  by  the 
suspecting  party,  and  the  complainant  should  aver 
that  the  property  has  been  stolen,  and  that  he 
has  cause  to  suspect,  and  does  suspect,  that  it  is 
secreted  in  the  house  or  place  proposed  to  be 
searched, 2*  which  place  must  be  described,  and  no 
place  other  than  that  described  can  be  searched. 
Nor  can  any  property  other  than  that  described  be 
seized. 

A  search  warrant  will  issue  either  to  recover 
stolen  property  or  procure  evidence  of  a  crime.  In 
California  it  may  be  issued  against  a  person. ^^  Like 
other  warrants,  it  should  be  signed,  and,  when  re- 
quired by  statute, ^^  sealed  by  the  magistrate  issuing 

22  Com.  w.  Lucy,  150  Mass.  164. 

28  Bouvier's  Law  Diet.  (Search  Warrant)  ;  Grumou  v. 
Raymond,  1  Conn.  40. 

2*  Com.  I'.  Phillips,  16  Pick.  (Mass.)  214;  Grumon  ?;. 
Raymond,  supra  cit. 

26  Collins  V.  Lean,  68  Cal.  284. 

2«  Millett  V.  Baker,  42  Barb.  (N.  Y.)  215. 


THE  ISSUANCE   AND   SERVICE    OF   LEGAL   PROCESS     15 

it.     It  may  be  directed  either  to  an  officer,  or,  iu 
case  of  necessity,  to  a  private  person.  2" 

§  23.  Constitutional  Provisions.  —  The  Constitu- 
tion of  the  United  States,  Article  IV,  Amendment, 
provides,  "  The  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  effects  against 
unreasonable  searches  and  seizures,  shall  not  be 
violated,  and  no  warrant  shall  issue  but  on  prob- 
able cause,  supported  by  oath  or  affirmation,  and 
particularly  describing  the  place  to  be  searched  and 
the  persons  or  things  to  be  seized. "  But  this  pro- 
vision does  not  apply  to  searches  and  seizvtres  made 
under  direction  of  State  authorities.^^  Provisions, 
however,  similar  to  that  enacted  in  the  Constitu- 
tion of  the  United  States,  have  been  enacted  in  the 
various  State  constitutions,^^  and  thereby  afford  the 
citizens  of  the  particular  State  ample  protection 
against  unreasonable  searches  and  seizures. 

§  24.  Permission  -will  justify  Searching  ■without 
a  Warrant.  —  The  constitutional  provisions  respect- 
ing search  warrants  apply  only  to  cases  where  the 
search  is  without  the  consent  of  the  occupant  of  the 

'"  Meek  v.  Pierce,  19  Wis.  318;  Com.  v.  Foster,  1  Mass. 
403;  4  Bl.  Com.  291;  1  Hale's  Pleas  of  Crown,  581;  2 
Hawkins'  Pleas  of  Crown,  c.  13,  §  28;  Rex  r.  Kendall,  1 
Ld.  Kaym.  (Eng.  K.  B.)  fJO  ;  Kelsey  v.  Parmalee.  15  Conn. 
265;  Blatfher  v.  Kemp,  1  II.  Black.  (Eng.  C.  P.)  15. 

28  Spies  V.  Illinois,  123  U.  S.  131 ;  Reed  v.  Rice,  2  J.  J. 
Marshall  (Ky.),  44. 

29  See  Const.  Mass.,  Part  I.,  Art.  XIV. 


16  THE   LAW   OF   ARREST 

premises,  therefore  where  permission  is  given  to 
search,  either  by  the  occupant  or  his  agent,  a  search 
warrant  is  not  necessary.  So  where,  after  the  arrest 
of  one  on  a  charge  of  arson,  police  officers  went  to 
his  place  of  business  in  the  burned  building,  and 
without  a  search  warrant,  but  with  the  permission 
and  assistance  of  his  acrent,  who  was  in  charge  of 
the  premises,  found  and  removed  certain  articles 
which  were  used  as  evidence  against  the  accused  at 
the  trial,  the  introduction  of  this  evidence  could 
not  be  objected  to  as  having  been  taken  in  violation 
of  the  State  constitution  regulating  searches  and 
seizures,  or  that  it  compelled  him  to  give  evidence 
against  himself,  because  the  accused  was  bound  by 
the  consent  given  by  his  agent,  and  in  consequence 
there  was  no  "  seizure  "  or  compulsion.  ^"^ 

§  24  a.  Illegal  Seizure  does  not  destroy  Admis- 
sibility of  Evidence  obtained  Thereby.  —  Where 
papers  which  are  pertinent  to  the  issue  are  il- 
legally taken  from  the  possession  of  the  party 
against  whom  they  are  offered  as  evidence,  the  fact 
of  the  illegal  seizure  cannot  be  offered  as  a  valid 
objection  to  their  admissibility,  because  the  court 
limits  the  inquiry  to  the  competency  of  the  proffered 
testimony  and  will  not  stop  to  inquire  as  to  the 
means  by  which  the  evidence  was  obtained.  ^^ 

80  state  V.  Griswold,  67  Conn.  290. 

81  Adams  v.  New  York,  192  U.  S.  585  ;  Com.  v.  Dana,  2 
Mete.  (Mass.)  329 ;  State  v.  Griswold,  67  Coun.  306. 


THE  ISSUANCE    AND   SERVICE   OF   LEGAL   PROCESS     17 

And  where  a  police  officer,  arired  with  a  search 
warrant  calling  for  a  search  for  intoxicating  liquors 
upon  the  premises  of  the  defendant's  husliand,  took 
two  letters  which  he  found  at  the  time,  it  was  held 
that  a  trespasser  may  testify  to  pertinent  facts  ob- 
served by  him,  or  may  put  in  evidence  pertinent 
articles  or  papers  found  by  him  while  trespassing, 
and  although  he  may  be  held  responsible  civilly 
or  criminally  for  the  trespass,  his  testimony  is  not 
thereby  rendered  incompetent.^^ 

§  25.  Purposes  for  which  a  Search  Warrant  will 
Issue.  —  The  purposes  for  which  a  search  warrant 
will  issue  are  usually  fully  described  by  statute,"^ 
and  generally  embrace  the  search  for  stolen  property, 
intoxicating  liquors,  gaming  implements,  counterfeit 
money,  and  instruments  used  in  making  it,  and  other 
articles  made,  sold,  or  kept  in  violation  of  law. 

§  26.  Bench  Warrant.  —  Definition.  —  A  bench 
warrant  is  a  process  issued    by  a    judge    from  the 

82  Com.  V.  Tibbetts,  157  jNIass.  519.  See  also  Com.  v. 
Acton,  165  IMass.  11 ;  Com.  v.  Smith,  160  Mass.  370  ;  Clias- 
taug  V.  State,  83  Ala.  29;  State  v.  Flyiin,  3G  N.  II.  64; 
State  V.  Edwards,  51  \V.  Va.  220  ;  Sliields  v.  State,  104  Ala. 
35;  Bacon  v.  United  States,  97  Fed.  Kep.  35;  State  v. 
Atkinson,  40  S.  C.  363;  Williams  v.  State,  100  Ga.  511; 
State  V.  Poraeroy,  130  Mo.  489;  (iuidrat  r.  People,  138  111. 
103 ;  Trask  v.  People,  151  111.  523 ;  Starchman  i;.  State,  62 
Ark.  538;  People  v.  Adams,  85  N.  Y.  App.  390;  State  v. 
Van  Tassel,  103  Iowa,  6;  State  v.  Kaub,  15  Mo.  App.  433; 
Legatt  V.  Tollervey,  H  East  (Eng.  K.  P.).  302. 

*"  See  Revised  Laws  oi  JNIass.  c.  217,  §§  1-8. 
2 


18  THE   LAW    OP    ARREST 

bench,  that  is,  by  the  court  itself,  for  the  arrest  of 
a  person,  either  in  a  case  of  contempt  of  court,  or 
after  an  indictment  has  been  found,  or  to  bring  in 
a  witness  who  has  not  obeyed  the  subpoena.  It 
requires  all  the  formalities  of  other  warrants  of 
arrest. 

The  only  purpose  of  the  term  "  bench  warrant "  is 
to  distinguish  it  from  a  warrant  issued  by  a  magis- 
trate, who  may  be  a  judge  not  sitting  ofhcially,  or 
a  justice  of  the  peace,  whereas  a  bench  warrant  is 
always  issued  by  a  judge  at  an  official  sitting.  It 
is  the  usual  warrant  to  issue  after  an  indictment 
has  been  found. 

A  bench  warrant  is  bad  which  does  not  direct 
that  the  party  shall  be  brought  before  some  judge 
or  justice.^* 

§  27.  Warrant  of  Arrest.  —  Definition.  —  A  war- 
rant of  arrest  is  a  legal  process  issued  by  competent 
legal  authority,  directing  the  arrest  of  a  certain  per- 
son, or  persons,  upon  sufficient  grounds,  which  must 
be  stated  in  the  warrant.  ^^ 

^  28.  Issuing  Magistrate  need  not  have  Trial 
Jurisdiction.  —  A  warrant  is  usually  issued  by  a 
magistrate  having  jurisdiction  to  try  the  offence, 
but  a  justice  of  the  peace  who  has  no  jurisdiction 
to  try  an  offence  may  act  in  a  ministerial  capacity, 

8*  Queen  v.  Downey  &  Jones,  7  Q.  B.  (Eng.)  281. 
8i  Drennau  v.  People,  10  Mich.  169. 


THE   ISSUANCE   AND   SERVICE   OF   LEGAL   PROCESS      19 

and  issue  a  warrant  returnable  before  a  court  which 
has  the  necessary  trial  jurisdiction.^^ 

§  29.  What  Executing  Officer  must  know.  —  An 
officer  called  upon  to  execute  a  warrant  is  charged 
with  two  duties  which  he  must  observe  in  order  to 
insure  his  own  freedom  from  liability.  He  must 
know  (1)  that  the  magistrate,  or  court  who  issues 
the  warrant  has  general  jurisdiction  of  the  subject- 
matter,^'  and  (2)  that  the  warrant  is  valid  upon  its 
face.  2^ 

§  30.  How  far  a  Warrant  Valid  upon  its  Face 
protects  the  Officer.  —  From  the  decisions  it  does 
not  seem  clear  as  to  just  how  far  an  officer  is  pro- 
tected by  a  warrant  that  is  valid  upon  its  face. 

One  line  of  cases  seems  to  hold  that,  on  the 
ground   of   public  policy,    and   in  order  to  secure 

s6  Com.  V.  Roark,  8  Cush.  (Mass.)  210.  See  also  Gold 
r.  Bissell,  1  Wend.  (X.  Y.)  217. 

87  State  r.  McDonald,  3  Dev.  (N".  C.)  471  :  Allen  v.  Gray, 
11  Conn.  95;  Tellefson  c.  Fee,  168  Mass.  188;  Stephens  v. 
Wilkins,  6  Pa.  St.  260;  Earl  v.  Camp,  16  Wend.  (N.  Y.) 
562;  E]a  V.  Shepard,  32  N.  H.  277;  Ilines  v.  Cliambers,  29 
INIinn.  7  ;  Hann  v.  Lloyd,  21  Vroom  (N.  J.),  1.  Contra  : 
Emery  v.  Hapgood,  7  Gray  (Mass.),  55. 

"8  Emery  v.  Ilapgood,  supra  cit. ;  Clark  v.  Woods,  2  Exch. 
(Eng.)  395;  Pearce  v.  Atwood,  13  Mass.  324;  Eames  v. 
Johnson,  4  Allen  (Mass.),  382;  Thurston  v.  Adams,  41  Me. 
419;  Brown  v.  Howard,  86  Me.  342;  Rosen  v.  Fischel,  44 
Conn.  871;  Frazier  v.  Turner,  76  Wi.-^.  562;  Sheldon  v.  Hill, 
33  Mich.  171 ;  Poulk  v.  Slocum,  3  Blackf.  (lud.)  421. 


20  THE   LAW   OP   ARREST 

prompt  and  effective  service  of  legal  process,  offi- 
cers, and  those  acting  under  them,  need  only  to  look 
upon  the  warrant,  and  if  that  is  fair  and  valid  upon 
its  face,  showing  no  defect  or  want  of  jurisdiction, 
the  officer  may  justify  under  it,  although  it  is  wholly 
void,^^  and  that  he  need  not  take  notice  of  extrinsic 
facts.  40 

While  another  line  of  reasoning,  which  seems  to 
be  the  weight  of  authority,  is  that  a  warrant  is 
void  upon  its  face  if  the  whole  proceeding  in  which 
it  was  issued  was  beyond  the  jurisdiction  of  the 
issuing  court,  and  that  if  the  officer  knows  the 
facts  in  the  case  he  is  conclusively  presumed  to 
know  the  law,  and  therefore  liable. 

So  where  a  justice  of  the  peace  issued  a  warrant 
for  the  collection  of  road  taxes,  not  having  jurisdic- 
tion over  such  taxes,  the  officer  was  held  liable  for 
executing  the  warrant.*^  And  where,  by  treaty  of 
1827  between  the  United  States  and  Sweden  and 
Norway,'*^  exclusive  jurisdiction  in  an  action  for 
wages  brought  by  a  Norwegian  sailor  against  the 
captain  of  a  Norwegian  vessel  was  given  to  the 
Norwegian  consul  of  the  particular  port  in  which 
the  vessel  was  lying,  the  courts  of  the  United  States 
have  no  jurisdiction;  and  an  officer  who  serves  a 
warrant   issued   by  a  municipal   court  after  these 

89  Emery  v.  Hapgood,  7  Gray  (Mass.),  58. 

41  People  V.  Warren,  5  Hill  (N.  Y.),  440. 
"  Stephens  v.  Wilkins,  6  Pa.  St.  260. 

42  8  U.  S.  Stats.  346,  352. 


THE   ISSUANCE    AND    SERVICE    OF   LEGAL   PROCESS     21 

facts  have  been  brought  to  his  attention,  is  liable, 
although  the  want  of  jurisdiction  is  not  apparent 
on  the  face  of  the  warrant,  which  is  in  proper 
form.  ^^ 

If  the  process  is  void  upon  its  face,  it  is  no  pro- 
tection whatever,  and  the  officer  or  other  party  who 
serves  it  is  liable  civilly  and  criminally.  If  he 
kills  in  the  act  of  serving  the  process,  it  is  murder. 

§  31.  Ignorance  of  the  Law  is  no  Excuse.  —  If 
either  the  jurisdiction  or  warrant  is  faulty,  the 
fact  that  the  officer  does  not  know  the  law  govern- 
ing these  matters  will  not  excuse  him,**  because 
every  one  is  conclusively  presumed  to  know  the 
law,  the  well-settled  maxim  of  the  law  being, 
"  Ignorance  of  the  law  excuses  no  one. " 

§  32.  Ignorance  of  Fact  may  Excuse.  —  But 
although  ignorance  of  the  law  is  no  excuse,  igno- 
rance of  fact  may  be  a  valid  excuse ;  and  if  the 
officer   is    ignorant   of   jurisdictional    facts,    which 

"  Tellefson  v.  Fee,  168  Ma-ss.  188.  See  also  Warren  v. 
Kelley,  80  Me.  512;  Batchelder  v.  Currier,  45  \.  II.  4G0; 
Campbell  v.  Sherman,  35  Wis.  103 ;  Leachnian  v.  Dougherty, 
81  111.  324. 

**  Sandford  v.  Xichols,  13  Mass.  286 ;  Fi.sher  v.  McGirr, 
1  Gray  (Mass.),  1,  45;  Warren  t-.  Kelley,  80  Me.  512; 
Batchelder  v.  Currier,  45  N.  H.  460;  Thurston  r.  ^Martin,  5 
Mason  (U.  S.  C.  C),  497;  Campbell  v.  Sherman,  35  Wis. 
103 ;  Sumner  v.  Beeler,  50  Ind.  341 ;  The  Marshalsea,  10 
Rep.  (Eng.  K.  B.)  68  b;  Crepps  v.  Durden,  Cowp.  (Eng. 
K.  B.)  640;  Watson  v.  Bodell,  14  M.  &  W.  (Eng.  Exch.)  57. 


22  THE   LAW   OF    ARREST 

ignorance  is  not  attributable  to  his  own  negligence, 
he  may  justify  by  a  process  that  is  fair  and  valid 
upon  its  face. 

§  33.  Officer  must  serve  Void  Warrant  if  the 
Defect  is  not  on  its  Face.  —  On  the  other  hand,  if 
the  warrant  is  void,  for  any  cause  other  than  want 
of  jurisdiction,  and  the  officer  knows  it,  he  is  pro- 
tected in  serving  it  if  the  defect  does  not  appear  on 
its  face ;  ^^  and  he  has  no  right  to  refuse  to  serve  a 
warrant,  issued  by  a  court  of  competent  jurisdic- 
tion, if  it  is  valid  on  its  face,  even  though  it  be 
void.  46 

If  there  is  an  insufficiency  in  the  complaint,  the 
officer  is  not  liable  if  the  defect  does  not  appear  on 
the  face  of  the  warrant, 4"  because  he  has  the  right  to 
rely  upon  the  warrant  alone.  ^^ 

A  clerical  mistake  in  copying  the  facts  from 
the  complaint,  at  least  in  the  matter  of  a  date, 
does  not  make  the  warrant  invalid,  if  it  is  not 
misleading.*^ 

^5  Kennedy  r.  Dundee,  1  Gray  (Mass  ),  65;  Parsons  v. 
Loyd,  3  Wils.  (Eng.  C.  P.)  345;  Gasset  r.  Howard,  10  Ad. 
&  El.  N.  s.  (Eng.  Q.  B.)  454;  Allison  v.  Rheam,  3  S.  &  R. 
(Pa.)  139. 

*«  Wilraarth  v.  Burt,  7  Mete.  (Mass.)  2.57;  Tarlton  r. 
Fisher,  2  Doug.  (Eng.  K.  B.)  671 ;  Cameron  v.  Lightfoot,  2 
W.  Bl.  (Eng.  K.  B.)  1190. 

*"  Donahue  r.  Shed,  8  Mete.  (Mass.)  326;  Com.  i;. 
Murray,  2  Va.  Cases,  504. 

*^  Wilmarth  v.  Burt,  supra  cit. 

*^  Heckman  v.  Swartz,  64  Wis.  48. 


THE   ISSUANCE   AND   SERVICE    OF   LEGAL    PROCESS     23 

§  34.  Return  of  Warrant  is  Necessary  to  its 
Validity.  —  But  even  though  a  warrant  be  i.ssued 
by  a  court  of  competent  jurisdiction  over  both 
party  and  subject-matuer,  and  though  the  warrant 
be  fair  and  valid  upon  its  face,  it  is  of  no  protec- 
tion whatever  to  the  officer  if  he  does  not  return  it 
to  court  after  he  ser\  es  it.  '^'^ 

§  35.  Life  of  a  Warrant.  —  A  warrant  remains 
in  force  until  it  is  returned;  even  if  the  accused 
has  been  arrested  and  escapes,  he  may  be  taken 
a^ain  on  the  same  warrant,  if  it  has  not  been 
returned.  After  its  return,  however,  it  has  no 
validity;  nor  can  it  be  altered, ^^  for  its  life  is 
then  extinct. 

§  36.  Effect  of  the  Return.  —  The  eflect  of  the 
return  by  the  officer  is  that,  as  against  himself,^^ 
it  is  conclusive  proof  of  the  service  and  of  the  other 
facts  which  it  recites,  while  as  against  the  parties, 
it  is  at  least  prima  facie  proof, ^  and  in  most  States 

50  Brock  V.  Stimson,  108  Mass.  o20;  Tubbs  v.  Tiikey,  3 
Cash.  (Mass.)  438;  Dehm  v.  Ilinman,  56  Conn.  320.  See 
also  Com.  v.  Tobin,  108  IMass.  420;  Shorland  v.  Govett,  5 
B.  &  C.  (Eng.  K.  B.)  485;  Middleton  v.  Trice,  1  Wils. 
(Eng.  C.  P.)  17. 

61  Cora.  V.  Roark,  8  Cash.  (^lass.)  210. 

62  Blue  v.  Com.,  2  J.  J.  Marshall  (Ky).  20  ;  Benjamin  v. 
Hathaway,  3  Conn.  528;  Ilensley  i\  Rose,  76  .\la.  373. 

6^  Watson  V.  Watson,  6  Conn.  334;  Newell  v.  Whigham, 
102  N.  Y.  20. 


24  THE    LAW    OP    ARREST 

it  is  conclusive  proof  against  the  parties  also.^*  In 
an  action  against  a  public  officer  his  return  is  prini'i 
facie  but  not  conclusive  evidence  in  his  favor, 
although  it  is  conclusive  in  the  suit  in  which  it  is 
made.^^  Nor  is  a  return  of  a  rescue  on  a  writ 
conclusive  evidence  in  behalf  of  the  officer  in 
an  action  brought  against  him  for  the  escape  of  a 
prisoner.  ^^ 

An  officer  will  not  be  permitted  to  introduce  evi- 
dence to  show  that  although  he  has  omitted  to  men- 
tion in  his  return  that  he  has  done  things  which  he 
should  have  done,  he  has  nevertheless  done  them.^' 
And  he  will  not  be  allowed  to  contradict  his  own 
return  for  his  own  benefit.  ^^ 

The  return,  by  permission  of  the  court,  may  be 
amended  by  the  officer.  ^^ 

§  37.  "Warrants  in  Blank  are  Void.  —  A  war- 
rant must  not  be  issued  in  blank  with  view  of 
later  writing  in  the  name  of  the  defendant.  ^^  Such 
warrants  are  absolutely  void. 

^*  Nichols  V.  Nichols,  90  Iiid.  433;  Green  v.  Kindy,  43 
Mich.  279. 

^5  McGough  V.  Wellington,  6  Allen  (Mass.),  505. 

*8  Whitehead  v.  Keyes,  3  Allen  (Mass.),  495;  Barrett  i'. 
Copeland,  18  Vt.  67. 

57  Grant  v.  Shaw,  1  Root  (Conn.),  526. 

58  Purrington  v.  Loring,  7  Mass.  388  ;  Gardner  v.  Hosmer, 
6  Mass.  324. 

59  Johnson  v.  Stewart,  11  Gray  (Mass.),  181 ;  Lake's  Case, 
15  R.  I.  62S;  Dwiggins  v.  Cook,  71  lud.  579. 

60  Rafferty  i'.  People,  69  111.  111. 


THE   ISSUANCE    AND    SERVICE   OF   LEGAL   PROCESS     25 

§  38.  General  "Warrants  are  Void.  —  Nor  can  a 
warrant  be  legally  issued  in  a  general  way  against 
any  one  of  a  certain  class  of  persons ;  °^  but  a 
statute  may  authorize  the  arrest,  without  warrant, 
of  any  one  of  a  certain  class,  as,  for  example, 
vagrants,  prostitutes,  etc.^^ 

§  39.  "Warrant  must  particularly  describe  the  Party 
to  be  arrested.  —  A  warrant  may  be  valid  although 
it  does  not  contain  the  name  of  the  person  whose 
arrest  is  directed.  But  for  want  of  the  true  name 
of  such  person  there  must  be  such  sufficient  de- 
scription of  him  in  the  warrant  that  he  may  be 
identified  therefrom ;  as,  for  example,  stating  his 
occupation,  his  personal  appearance,  and  peculiar- 
ities, the  place  of  his  residence,  or  other  circum- 
stances of  identification. 

§  40.  OflBcer  must  rely  on  Name  alone.  —  Where 
a  warrant  gives  a  fictitious  name,  without  stating 
that  the  name  is  fictitious,  and  that  the  true  name 
is  unknown,  and  follows  with  a  description  of  the 
person,  the  officer  must  rely  on  the  name  alone, 
and  cannot  justify  the  arrest  of  a  party  whose  name 
is  other  than  that  appearing  in  the  warrant,  even 
though  he  is  the  party  described  and  intended.  As 
where  a  warrant  was  issued  against  "  John  Doe,  the 
person  carrying  off  the  cannon,"  the  arrest  of  Levi 

61  Com.  r.  Crotty,  10  Allen  (Mass.),  403;  Mead  r.  Haws, 
7  Cow.  (N.  Y.)  3:52. 

*^  Money  v.  Leach,  3  Burrows  (Eng.  K.  B.),  1766. 


26  THE   LAW   OF    ARREST 

Mead  is  not  justifiable,  although  he  was  taken  in 
the  act  of  carrying  off  the  cannon,  and  was  the 
person  intended.  ^^ 

§  41.     General  Warrants   are   prohibited.  —  If  the 

description  in  a  warrant  is  so  general  that  it  may 
be  applied  to  different  persons,  it  is  open  to  the 
objection  that  it  is  a  general  warrant,*^*  and  is  for 
that  reason  in  violation  of  the  Constitution  of  the 
United  States,  Article  IV,  Amendment,  which  re- 
quires a  particular  description  of  a  person  to  be 
seized, ^^  and  any  person  whose  arrest  is  attempted 
thereunder  is  justified  in  resisting  such  unlawful 
arrest. 

§  42.  Never  Sufficient  that  Intended  Party  was 
arrested.  —  It  is  never  sufficient  that  the  party 
intended  to  be  arrested  was  the  one  actually  appre- 
hended. The  warrant  must  so  describe  the  party 
arrested  that  he  may  know  whether  he  is  bound 
to  submit.  So  where  the  complaint  was  against 
"  John  E.  Miller,"  and  the  warrant  commanded  the 
arrest  of  "  the  said  William  Miller,"  the  officer  was 
not  justified  in  arresting  John  E.  Miller,  although 
it  was  proved  that  he  was  the  person  intended.  ^^ 

63  Mead  v.  Haws,  7  Cowen  (N.  Y.),  332 ;  West  v.  Cabell, 
153  U.  S.  78;  Harris  v.  Mc Reynolds,  10  Col.  App.  532.  Contra: 
by  statute  in  Arizona:  "^Mlliams  v.  Tidball,  2  Ariz.  (1885). 

64  Com.  V.  Grotty,  10  Allen  (INIass.),  404. 

65  West  V.  Cabell,  153  U.  S.  78. 

66  Miller  v.  Foley,  28  Barb.  (N.  Y. )  630.  See  also  Gris- 
wold  V.  Sedgwick,  6  Cowen  (X.  Y.),  455. 


THE   ISSUANCE   AND    SERVICE   OF   LEGAL   PROCESS     27 

§  43.  Party  known  by  two  Names  may  be  ar- 
rested by  either.  —  But  where  a  person  is  known 
by  two  names,  and  equally  well  by  either,  a  warrant 
may  command  his  arrest  under  either  name,  even 
though  it  be  the  wrong  one.*^'^ 

§  44.  No  Protection  to  Officer  who  serves  a 
"Warrant  without  Authority.  —  An  officer  cannot 
be  protected  by  a  warrant  that  is  not  issued  to 
himself  to  serve,  nor  is  he  protected  unless  he  has 
authority  to  serve  it.  ^^ 

§  45.  The  Requisites  of  a  Valid  "Warrant.  —  It 
is  somewhat  difficult  to  say  just  what  are  the 
requisites  of  a  valid  warrant,  but  in  a  general  way 
it  may  be  said  that  a  warrant  must  have  all  the 
requisites  demanded  by  the  constitutional  and  statu- 
tory provisions  of  the  particular  State  in  which  it  is 
issued ;  it  must  show  on  its  face  that  it  was  issued 
by  a  magistrate  having  jurisdiction  of  both  party 
and  subject-matter;^^  and  here  it  may  be  noted  that 
where  the  magistrate  has  no  jurisdiction,  it  cannot 
be  conferred  by  the  consent  of  the  party  defendant.  ''^ 

6T  Shadgett  v.  Clipson,  8  East  (Eng.  K.  B.),  :32S :  Cole  v. 
Hindson,  G  T.  R.  (Eng)  231. 

68  Reynolds  v.  Orvis,  7  Cowen  (N.  Y.),  269;  AYood  v. 
Ross,  11  Mass.  271;  Paul  v.  Vankirk,  6  Binn.  (Pa.)  12:3; 
State  i\  Wenzel,  77  Ind.  428;  O'Malia  v.  "Wentworth,  65 
Me.  129  ;  Winkler  r.  State,  32  Ark.  539. 

6^  In  re  Bonner,  151  U.  S.  242  ;  Re}Miolds  >:.  Orvis,  supra 
cit. ;  Fisher  r.  Shattiick,  17  Pick.  (Mass.)  252. 

^0  People  V.  Campbell,  4  Parker  Cr.  Rep.  (X.  Y.)  386. 


28  THE   LAW   OF    AEREST 

It  must  state  the  offence  with  which  the  party  is 
charged,  which  must  be  an  offence  against  the  law,"^ 
and  that  the  necessary  complaint  on  oath  or  affirma- 
tion was  made. '^  It  must  show  the  time  of  issu- 
ance/^ and  the  authority  to  issue.'*  It  must 
correctly  name  the  defendant,  or  so  accurately  de- 
scribe him  that  from  the  description  he  may  be 
identifi.ed. '^  It  must  be  directed  to  the  proper 
officer,  either  by  name,  or  by  a  description  of  the 
office  which  he  holds. '^  It  must  command  the 
arrest,'''  and  not  leave  it  optional  with  the  officer 
to  arrest  or  not  as  he  may  choose ;  and  command 
the  officer  to  bring  the  defendant  before  some 
authorized  magistrate.'^ 

A  warrant  should  bear  the  signature  of  the  justice 
who  issues  it,  contain  all  the  statutory  requirements, 

"  People  V.  Mead,  92  N.  Y.  415;  Johnson  v.  State,  73 
Ala.  21  ;  State  v.  Jones,  88  N.  C.  671. 

'2  Caudle  v.  Seymour,  1  Q.  B.  (Eng.)  889;  Grumon  r. 
Raymond,  1  Conn.  40. 

'3  Donahoe  v.  Shed,  8  Mete.  (Mass.)  326. 

''^  Com.  v.  Ward,  4  Mass.  497 ;  Halstead  v.  Brice,  13  Mo. 
171. 

T5  Com.  V.  Crotty,  10  Allen  (Mass.),  403;  West  v.  Cabell, 
153  U.  S.  78;  Miller  v.  Foley,  28  Barb.  (N.  Y.)  630. 

T«  Rex  V.  Weir,  1  Barn!  &  Cres.  (Eng.  K.  B.)  288; 
Com.  V.  Foster,  1  Mass.  493;  Cora.  v.  Moran,  107  Mass. 
239. 

"  Abbott  V.  Booth,  51  Barb.  (N.  Y.)  546. 

"  Stetson  V.  Packer,  7  Cush,  (Mass.)  562;  Com.  v.  Wil- 
cox, 1  Cush.  (Mass.)  503 ;  Reg.  r.  Downey,  7  Q.  B.  (Eng.) 
281 ;  Bookhout  v.  State,  66  Wis.  415. 


THE    ISSUANCE    AND    SERVICE   OF   LEGAL   PROCESS     29 

which  generally  include  a  seal,'^  and  he  dated.  It 
should  contain  a  command  to  the  officer  to  make 
a  return  thereof  and  his  doings  thereon.  But  the 
want  of  such  command  does  not  excuse  him  from 
the  obligation  of  making  a  proper  return. ^^ 

§  46.     Warrant  must  be  in  Possession  of  Officer.  — 

The  officer  or  private  person  making  an  arrest  with 
a  warrant,  in  a  case  where  a  warrant  is  necessary, ^^ 
must  have  the  warrant  in  his  possession  at  the 
time  of  making  the  arrest ;  ^^  and  it  is  immaterial 
whether  the  person  taken  has  demanded  an  inspec- 
tion of  the  warrant,  for  it  is  the  legal  right  of  the 
person  arrested  that  such  shall  be  the  situation, 
and  therefore  where  the  situation  does  not  exist, 
the  arrest  is  a  le^al  wrong.  ^^ 

The  fact  that  the  arrested  party  knows  that 
a  warrant  has  been  issued  will  not  relieve  the 
arresting  party  of  the  necessity  of  having  the  war- 

''^  In  Massachusetts,  it  is  provided  that  justices  and  special 
justices  of  police,  district,  and  municipal  courts  may  issue 
warrants  under  their  own  hands  and  se(ds.  Rev.  Laws  of 
Mass.  c.  IGO,  §  35.  A  trial  justice,  however  (not  iiaving 
an  official  seal),  may  issue  a  warrant  luider  his  hand  alone. 
llev.  Laws  of  Mass.  c.  216,  §  :). 

<*'  Tubbs  V.  Tukey,  3  Cush.  (Mass.)  438. 

81  People  V.  Shanley,  40  Hun  (N.  Y  ),  477;  Codd  v.  Cabe, 
13  Cox  C.  C.  (Eng.)  202. 

"  Webb  I'.  State,  51  N.  J.  Law,  189  ;  Smith  r.  Clark, 
53  X.  J.  Law,  197.  But  see  Cabell  v.  Arnold,  6Q  Tex. 
102. 

83  Smith  V.  Clark,  supra  cit. 


30  THE   LAW   OF   ARREST 

lant  with  liim.  ^*     And  there  is  no  such  thing  as 
constructive  possession  of  a  warrant.*^"'' 

But  where  a  sheriff  is  armed  with  a  warrant,  his 
deputy  may  make  an  arrest  within  the  sight  or 
hearing  of  the  superior  officer,  although  the  warrant 
is  not  actually  in  his  possession.  ^^ 

§  47.  Warrants  may  issue  on  Sunday.  —  In 
absence  of  statute,  a  warrant  may  be  issued  on 
Sunday,^'  but  no  arrest,  except  in  cases  of  treason, 
felony,  or  breach  of  the  peace,  can  be  made  on 
Sunday.  ^^ 

§  48.  Authority  to  alter  a  Warrant.  —  No  person, 
other  than  the  issuing  magistrate,  has  the  right  to 
alter  a  warrant,^^  because  if  altered  by  a  third  party 
it  would  not  be  the  warrant  issued  by  the  magis- 
trate who  signed  it. 

§  49.  Arrest  in  Different  County.  —  Tn  absence 
of  statutory  authority,  no  arrest  can  be  made  in 
one  county  in  a  State,  on  a  warrant  issued  by  a  jus- 
tice of  the  peace  or  judge  of  another  county  in  that 

8*  People  V.  Shanley,  40  Hun  (N.  Y.),  477. 

85  Ibid. 

85  People  V.  McLean,  68  Mich.  480;  Kirbie  v.  State,  5 
Tex.  App.  60;  Ex  parte  McManus,  32  New  Brunswick,  481; 
Com.  V.  Black,  12  Pa.  Co.  Ct.  31  ;  People  i^.  Moore,  2  Doug. 
(Mich.)  1. 

8"  Pearce  v.  At  wood,  13  INIass.  347. 

88  Wilson  V.  Tucker,  1  Salk.  (Eng.  K.  B.)  78 ;  Stat.  29, 
Car.  II.  c.  7. 

89  Haskins  v.  Young,  2  Dev.  &  B.  (X.  C.)  527  ;  Wells  v. 
Jackson,  3  Muuf.  (Va.)  458. 


THE   ISSUANCE   AND    SERVICE   OF   LEGAL   PROCESS     31 

State,  unless  the  warrant  is  indorsed  by  a  justice  of 
the  peace  or  judge  of  the  county  in  which  the  arrest 
is  made.  ^*^ 

§  50.  Warrant  may  be  Valid  without  a  Seal.  — 
A  warrant  ought  to  be  under  the  hand  and  seal  of 
the  justice,  but  it  seems  sufficient  if  it  be  in  writ- 
ing and  signed  by  him,  unless  a  seal  is  expressly 
required  by  statute.  ^^ 

The  warrant  of  a  commissioner  of  the  Vnited  States 
is  not  void  fur  lack  of  a  seal,  because  such  commis- 
sioner has  no  official  seal  and  is  not  required  by 
statute  to  affix  one  to  warrants  issued  by  him. ^ 

so  Jones  r.  State,  26  Tex.  App.  1 ;  Ressler  r.  Peats,  86  111. 
275;  Copeland  i'.  Islay,  2  Dev.  &  Bat.  (X.  C.)  oU5;  Letl- 
better  v.  State,  23  Tex.  App.  247  ;  4  BI.  Com.  291. 

In  Massachusetts,  if  the  defendant  escape  from,  or  is  out 
of  the  county  in  which  the  warrant  is  issued,  the  officer  niay 
pursue  and  take  him  in  any  county  in  the  Commonwealth, 
as  if  in  his  own  county.     Rev.  Laws,  c.  217,  §  28. 

91  Padfield  v.  Cabell,  AVilles  Rep.  (Eng.  Com.  PI.)  411. 
A  warrant  of  arrest  is  valid  if  it  has  the  signature  of  the 
magistrate  ;  the  seal  is  no  longer  necessary.  Burley  v.  Grif- 
fith, 8  Leigh  (Va.),  442.  Contra  :  Tackett  v.  State,  3  Yerger 
(Tenn),  392.  At  common  law,  a  .seal  was  not  necessary  to 
a  warrant  issued  by  a  jnstice  of  the  peace,  and  is  only  made 
so,  even  in  criminal  cases,  when  specifically  reqnired  by  stat- 
ute. J^Iillett  v.  Baker,  42  Barb.  (X.  Y.)  21.").  '-We  are  of 
tlie  opinion  that  there  was  no  settled  rule  at  common  law 
invalidating  warrants  not  under  seal,  iniless  the  magistrate 
issuing  the  warrant  had  a  seal  of  office,  or  a  seal  was  required 
by  statnte."  Chief  Justice  Fl'llku,  in  Starr  v.  U.  S.,  153 
U.  S.  619. 

^  Starr  v.  U.  S.,  153  U.  S.  614. 


32  THE   LAW   OF   ARREST 


CHAPTER   III 
WHO   MAY  ISSUE   A   WARRANT 

§  51.     Mandamus  may  compel  Justice  to   Act. — 

A  justice  before  whom  a  complaint  is  laid,  is  bound 
to  take  some  direct  action  on  the  facts  laid  in  the 
complaint,  and  if  he  refuse  to  consider  the  facts,  or 
what  is  of  the  same  effect,  if  he  decline  to  issue 
the  warrant  because  of  some  reason  not  disclosed  by 
the  evidence  before  him,  a  mandamus  will  lie  to 
compel  the  justice  to  take  some  action  on  the  facts 
before  him.  But  the  limit  of  the  writ  of  mandamus 
will  be  to  compel  action,  and  not  to  dictate  what 
that  action  shall  be.  ^ 

§  52.  Constitutional  Provision.  —  It  is  prescribed 
by  the  Constitution  of  the  United  States,  Article 
IV,  Amendment,  that  no  warrant  shall  issue  "  ex- 
cept upon  probable  cause  supported  by  oath  or 
affirmation, "  and  the  constitutions  of  the  several 
States  have  similar  provisions.  ^ 

The  Complaint. 

§  53.  Who  may  make  Complaint.  —  It  is  usually 
provided  by  statute  that  any  person  having  kuowl- 

1  15  Eng.  Rul.  Cases,  127;  Hempstead  Co.  v.  Graves,  41 
Ark.  317. 

2  See  Const,  of  Mass.  Part  I.,  Art.  XIV. 


WHO    MAY   ISSUE    A    WARRANT  66 

edge  of  the  commission  of  an  offence  for  which  a 
warrant  may  lawfully  issue,  may  make  a  written 
complaint,  subscribed  by  him,  together  with  the 
required  oath  or  affirmation  before  the  proper  offi- 
cer, whereupon  the  warrant  may  issue.  ^  When  an 
arrest  is  made  without  a  warrant,  the  arresting  party 
should,  upon  delivering  his  prisoner  to  the  proper 
authority,  immediately  make  a  complaint  setting 
forth  the  offence  for  which  the  arrest  was  made. 
Without  the  complaint  the  court  would  not  have 
jurisdiction  to  try  or  dispose  of  the  cause* 

§  54.  Not  necessarily  made  in  Writing.  —  Unless 
required  by  statute,  the  complaint  need  not  be  in 
writing.^ 

§  55.  Who  may  issue  Warrants.  —  The  statutes 
of  the  particular  State  in  which  the  arrest  is  to  be 
made  usually  designate  the  officers  who  have  powers 
to  issue  warrants  of  arrest.*^ 

In  Massachusetts,  a  justice  or  special  justice  of 
a  district  court  may  receive  complaints  and  issue 
warrants  when  the  court  is  not  in  session ;  and  it 
is  to  be  presumed  that  the  justice  acted  within  the 

s  Rev.  Laws  of  Mass.  c.  217,  §  22. 

*  Tracy  v.  Williams,  4  Conn.  107  ;  Bingham  c.  State,  59 
Miss.  530  ;  Prell  v.  McDonald,  7  Kan.  426. 

6  State  V.  Killett,  2  Bailey  (S.  C),  280. 

^  In  Massachusetts,  warrants  may  be  issued  by  justices  of 
the  supreme  judicial  court,  of  the  superior  court,  or  of  tiie 
police,  district,  or  municipal  courts,  aud  trial  justices,  llev. 
Laws  of  Mass.  c.  217,  §  21. 

3 


34:  THE   LAW   OF   ARREST 

authority  given  him,  and  that  the  court  was  not  in 
session  when  the  warrant  was  issued.^ 

§  56.  "Warrant  issued  •without  Complaint  is  Ille- 
gal. —  It  is  the  duty  of  the  magistrate  before  issuing 
a  warrant  to  require  evidence  on  oath  amounting  to 
a  direct  charge,  or  creating  a  strong  suspicion  of 
guilt.  ^  A  warrant  issued  upon  common  rumor  and 
report  of  the  guilt  of  the  accused,  though  it  recites 
that  there  was  danger  of  his  escaping  before  wit- 
nesses could  be  summoned  to  enable  the  judge  to 
issue  it  upon  oath,  is  illegal,  and  the  officer  was 
justified  in  refusing  to  serve  it,^  because  it  was 
void  upon  its  face. 

§  57.  Constitutional  Provisions.  —  There  being 
some  doubt  whether  the  common  law  absolutely 
required  that  a  warrant  should  issue  only  upon 
information  on  oath,  the  clause  concerning  probable 
cause  on  oath  was  added  to  the  fourth  amendment 
to  the  Constitution  of  the  United  States.  The 
legal  effect  of  this  provision  of  the  Constitution  is 
that  process  of  any  kind  for  the  arrest  of  a  person 
on  a  criminal  charge  is  void,  unless  issued  upon 
sufficient  information  under  oath,  and  an  arrest 
thereon  is  unlawful.  ^*^ 

■^  Com.  V.  Lynn,  154  Mass.  405. 

8  Com.  V.  Phillips,  16  Pick.  (Mass.)  214;  State  v.  Mann, 
5Ired.  (N.  C.)  45. 

^  Connor  v.  Com.,  3  Binn.  (Pa.)  38. 

10  Sprigg  V.  Stump,  8  Fed.  Rep.  (U.  S.)  207.  Contra: 
State  0.  Killett,  2  Bailey  (S.  C),  289. 


WHO    MAY   ISSUE    A    WARRANT  35 

§  58.  "  Subscribed  "  means  "  "Written  Beneath."  — • 
When  the  statute  requires  that  a  complaiut  shall 
be  "  subscribed,"  that  is,  written  beneath,  it  is  not 
sufficient  that  the  signature  of  the  complainant  be 
placed  below  the  description  of  the  goods  stolen, 
and  above  the  charge  of  larceny,  ^^  for,  said  the 
court  in  this  case,  "  Such  looseness  and  carelessness 
in  instituting  criminal  proceedings  are  not  to  be 
encouraged. " 

§  59.  Statutory  Jurisdiction  implies  Power  to 
Arrest,  —  Where  a  statute  gives  a  justice  jurisdic- 
tion over  an  offence,  it  impliedly  gives  him  power 
to  apprehend  any  person  charged  with  such  of- 
fence, and  especially  after  a  party  has  neglected  a 
summons.  ^^ 

In  any  proceeding  of  a  criminal  nature,  and 
brought  in  the  name  of  the  commonwealth,  a  jus- 
tice has  authority  to  proceed  by  a  warrant  of  arrest 
or  a  summons  at  his  discretion.  The  power  of 
arrest  is  laid  down  to  attend  all  offences  which  jus- 
tices of  the  peace  have  authority,  by  statute,  to 
punish.  It  is  necessary  to  prevent  tlie  escape  of 
transient  and  irresponsible  persons,  and  yet  should 
be  exercised  with  caution  and  moderation.  ^^ 

§  60.  Warrant  directed  to  a  Private  Person.  — 
It  has  been  decided  that  warrants  may  be  directed 

"  Com.  v.  Barhight,  9  Gray  (Mass.),  113. 

12  Bane  v.  Methueii,  2  Bing.  (Eng.  Com.  VI.)  63. 

"  Com.  V.  Borden,  61  Pa.  St.  272. 


36  THE   LAW   OF   ARREST 

to  private  persons  as  well  as  officers,^*  but  a  warrant 
may  be  directed  to  a  private  person  only  in  case  of 
necessity,  and  when  that  necessity  is  expressed  in 
the  warrant.  ^^  A  private  person  cannot  deputize 
another  to  serve  a  warrant  directed  to  him,  although 
he  may  demand  assistance. 

§  61.  Warrant  directed  to  Officer.  —  AVarrants 
may  be  directed  to  officers  either  by  their  particu- 
lar names,  or  by  the  description  of  their  office;  and 
it  has  been  decided  that  in  the  first  case  the  officer 
may  execute  the  warrant  anywhere  within  the  ju- 
risdiction of  the  magistrate  who  issued  it;  in  the 
latter  case  not  beyond  the  precincts  of  his  office. 
And  where  a  warrant  of  a  magistrate  was  directed, 
"  To  the  constables  of  W.  and  to  all  other  his 
majesty's  officers,"  it  was  held  that  the  constables 
of  W. ,  their  names  not  being  inserted  in  the  war- 
rant, could  not  execute  it  out  of  the  district.  ^^ 

§  62.     Delegating    Authority  to   serve    Process.  — 

An  officer  to  whom  process  is  directed  may  deputize 
another  to  serve  the  process  within  his  presence, 
that  is,  within  the  sight  or  hearing  of  the  superior 

1*  Dehm  v.  Hinman,  56  Conn.  320;  Doughty  r.  State,  33 
Tex.  1;  State  v.  Ward,  5  Harr.  (Del.)  496;  Dietrichs  v. 
Schaw,  43  Ind.  175;  Hayden  v.  Songer,  56  Ind.  42. 

15  Com.  V.  Foster,  1  Mass.  493 ;  Meek  v.  Pierce,  19  Wis. 
318. 

16  Rex  V.  Weir,  1  Barn.  &  Cres.  (Eng.  K.  B.)  288 ;  Paul 
V.  Vaukirk,  6  Binn.  (Pa.)  123. 


WHO    MAY   ISSUE   A   WARRANT  37 

officer  who  has  possession  of  the  warrant,^'  but  the 
deputized  party  cannot  re-delegate  his  authority.  ^^ 

Arrest  for  Contempt. 

§  63.  Contempt  of  Legislative  Body.  —  A  legis- 
lative body,  when  acting  in  a  judicial  capacity, 
has  authority  to  issue  a  warrant  for  the  arrest  of 
such  persons  as  are  guilty  of  contempt  of  that 
body ;  but  a  sergeant-at-arms  of  the  United  States, 
to  whom  a  warrant  is  directed,  has  no  authority  to 
appoint  a  deputy  to  execute  that  warrant  outside 
of  a  place  where  the  United  States  has  exclusive 
jurisdiction.  ^9 

§  64.  Contempt  of  Court.  —  When  a  judge,  in 
the  legitimate  exercise  of  his  jurisdiction,  is  defi- 
antly disobeyed,  he  may  commit  the  offender  in- 
stantly to  prison  for  contempt  of  court ;  and  where 
a  judge  of  a  superior  court,  acting  within  his  juris- 
diction, commits  for  contempt,  he  is  not  bound  in 
the  warrant  (if  a  waiTaut  is  made  out)  to  set  forth 
particularly  the  ground  of  the  commitment.  ^^ 

"  People  V.  McLean,  68  Mich.  480;  Kirbie  v.  State,  o 
Tex.  App.  60;  Ex  parte  McManus,  32  New  Biuiiswirk,  481  ; 
Bowling  V.  Com.,  7  Ky.  L.  Rep.  821  ;  Com.  v.  Black.  12  Pa. 
Co.  Ct.  31;  Com.  v.  Field,  13  .Mass.  321  ;  State  r.  Ward,  5 
Harr.  (Del.)  496.     See  §  75,  infra. 

^*  State  V.  Ward,  supra  cit. 

19  Sanborn  i-.  Carleton,  15  Gray  (Mass.),  399. 

'^  15  Eng.  Ilul.  Cases,  1. 


38  THE   LAW   OF   ARREST 

If  the  contempt  is  in  the  face  of  the  court  no 
warrant  is  necessary ;  an  order  is  sufficient.  ^^ 

If  a  justice  of  the  peace  has  power  to  commit  for 
contempt,  it  must  be  by  a  warrant  in  writing,  for  a 
time  certain  i^^  but  a  judge  of  a  superior  court  may 
commit  for  an  uncertain  time. 

21  Holconib  V.  Cornish,  8  Coun.  374. 

22  Rex  V.  James,  5  Bara.  &  Aid.  (Eug.  K.  B.)  894. 


WHAT   CONSTITUTES    AN    ARREST  39 


CHAPTER   IV 

-WHAT   CONSTITUTES    AN    ARREST  i 

§  65.  Definition.  —  To  arrest  is  to  deprive  a  person 
of  his  liberty  by  legal  authority.  It  is  the  seizing 
a  person  and  detaining  him  in  the  custody  of  the 
law.  2 

§  66.  Requisites  of  a  Legal  Arrest.  —  To  consti- 
tute a  legal  arrest  it  is  necessary  that  the  arrest- 
ing party  have  lawful  authority,  and  exercise  that 
authority  in  a  lawful  place,  and  at  a  lawful  time, 
and  that  the  arrested  party  be  not  exempt  from 
arrest. 

To  complete  an  arrest  there  must  be  a  taking  into 
custody,  either  by  touching  the  defendant  for  tlie 
purpose  of  arresting  him,  which  purpose  must  l)e 
brought  to  the  knowledge  of  the  defendant,  or  by 
his  submission  to  words  of  arrest  with  the  knowl- 
edge that  he  is  being  arrested.  ^ 

1  See  also  "False  Imprisonment,"  §  271  et  seq. 

'•^  Bouvier's  Law  Dictionary  (Arrest).  iMontc^omer}'' 
County  V.  Robinson,  S')  111.  174  [quoting  Bouvier's  Law 
Diet.].  "Apprehension"  is  more  ])roperIy  used  in  criminal 
cases;  "arrest"  in  civil  cases.  Ilogan  r.  Stophlet,  17l»  111. 
150. 

2  Steenerson  v.  Polk  Co.  Com'rs,  G8  ]Miun.  509. 


40  THE   LAW    OP   ARREST 

§  67.  Reading  "Warrant  is  not  Sufficient.  —  Merely 
reading  the  warrant  to  the  accused  does  not  make 
an  arrest*  But  where  an  officer  went  to  the  accused 
with  a  warrant,  and  finding  her  sick  in  bed,  read  it 
to  her,  and  told  her  that  if  she  did  not  give  a  bond 
he  "  would  haul  her  to  jail,"  it  was  held  that  there 
was  an  arrest,  although  he  did  not  touch  her  or 
exercise  any  physical  control  over  her.^ 

§  68.  Importance  of  Consummation  of  the  Arrest. 
—  The  completion  of  the  acts  which  constitute  an 
arrest  becomes  very  important  in  certain  cases,  for 
until  this  act  of  taking  into  custody  is  consum- 
mated, there  can  be  neither  a  criminal  rescue  of  the 
prisoner,  nor  a  criminal  escape  by  him.  And  an 
action  of  false  imprisonment  will  not  lie  against 
the  arresting  party  until  all  the  acts  necessary  to  a 
legal  arrest  have  been  consummated. 

In  an  action  for  false  imprisonment  the  following 
facts  appeared :  An  officer  having  a  warrant  for  the 
arrest  of  the  plaintiff  and  two  of  his  sons,  met 
the  plaintiff  and  one  of  his  sons  in  a  wagon.  The 
officer  said :  "  I  have  a  warrant  for  you  and  your 
two  sons. "  The  plaintiff  asked  :  "  What  for  ?  " 
The  officer  replied  :  "  For  stealing  pumpkins.  "  The 
plaintiff  started  to  get  out  of  the  wagon,  when 
the  officer  said :  "  You  can  go  home  and  get  your 

*  Baldwin  r.  Murphy,  82  111.  485;  George  v.  Radford,  3 
C.  &  P.  (Eng.  N.  P.)  464. 

^  Shannou  v.  Jones,  76  Tex.  141. 


WHAT    CONSTITUTES   AN   ARREST  41 

horses  put  up  and  take  your  tea,  and  come  down. " 
The  plaintiff  went  home,  and  with  his  two  sons 
went  to  the  house  of  the  officer,  and  called  out : 
"  Here  's  your  prisoners. " 

The  officer  said :  "  You  move  on  and  I  will  over- 
take you.  "  They  went  on.  The  officer  overtook 
them  as  they  got  to  the  house  of  the  justice,  and 
they  went  in  together.  Held,  that  the  evidence 
showed  an  arrest  of  the  plaintiff.^ 

§  69.  Touching  the  Accused  is  not  Necessary.  — 
In  making  an  arrest  it  is  not  necessary  that  the 
party  making  the  arrest  shall  even  touch  the  person 
of  the  arrested  party,  but  it  is  enough  if  the  arrested 
party  is  in  the  power  of  the  party  making  the  arrest, 
and  submits  to  the  arrest,^  with  the  knowledge  that 
he  is  being   arrested.^ 

§  70.     Understanding  of  the   Parties  is   Important. 

—  In  construing  the  acts  relied  upon  to  establish 
the   arrest,   tlie    intent   and   understanding    of   the 

6  Searles  v.  Viets,  2  Thomp.  &  C.  (N.  Y.)  224. 

''  ]\Iowry  V.  Chase,  100  Mass.  79;  Gold  v.  liis.sell,  1  Wend. 
(N".  Y)  210;  Ahem  v.  Collins,  39  Mo.  145;  Alderich  v. 
Ilumplney,  29  Out.  427;  Warner  v.  Riddiford,  4  C.  B.  n.  s. 
(Eng.)  180;  Searles  v.  Viets,  2  Thomp.  &  C.  (X.  Y.)  224; 
Tracy  r.  Seamans,  7  N.  Y.  St.  144;  Journey  r.  Sharpe,  49 
N.  C.  165;  Brushaber  f.  Stegemann,  22  Mich.  2i)G;  Shannon 
r.  Jones,  76  Tex.  141;  Courtoy  v.  Dozier,  20  Ga.  309;  Field 
V.  Ireland,  21  Ala.  240;  McCracken  v.  Ansley,  4  Strub. 
(S.  C.)  1. 

8  Jones  r.  Jones,  13  Ired.  (N.  C.)  448. 


42  THE    LAW    OF    ARREST 

parties  become  very  importaut;  and  whether  the 
parties  understood  the  acts  to  amount  to  an  arrest 
is  a  question  of  fact  for  the  jury. ^ 

§  71.  Complete  Control  is  Sufficient.  —  If  an 
officer  assumes  control  over  the  person  of  the  de- 
fendant, as  where  when  in  a  room  with  the  accused 
he  locks  the  door,  and  tells  him  that  he  is  a  pris- 
oner, there  no  submission  or  touching  is  necessary, 
for  the  defendant  has  been  completely  taken  into 
the  custody  of  the  law.  i*' 

§  72.  Avoiding  Custody  by  Accepting  Alterna- 
tive. —  Where  the  accused,  to  avoid  being  taken 
into  custody,  accepts  an  alternative  which  is  offered 
him  by  the  arresting  party,  there  the  arrest  is 
complete,  although  no  physical  control  is  exercised. 
As  where  an  officer  came  to  the  room  of  the  party 
whose  arrest  was  sought,  and  finding  him  ill  in  bed, 
told  him  that  unless  he  deliver  a  certain  article  or 
find  bail,  he  must  either  take  him  or  leave  a  man 
with  him,  and  the  party  complied  with  his  order, 
it  was  held  a  sufficient  arrest.-'^ 

But  where  an  officer  stated  to  the  defendant  that 
he  had  a  capias  for  him,  and  the  defendant  asked 
for  a  couple  of  days  to  procure  a  bond,  to  which  the 
officer  assented,  and  upon  receiving  the  bond   two 

9  Jones  V.  Jones,  13  Ired.  (N.  C.)  448. 
i»  Williams  v.  Jones,  Cas.  temp.  Hard.  (Eng.  K.  B.)  298. 
11  Grainger  v.  Hill,  4  Bing.  N.  C.  (Eng.  C.  P.)  212. 


WHAT   CONSTITUTES   AN   ARREST  43 

days  later,  indorsed  the  arrest  on  the  capias  as  of 
that  date,  it  was  held  that  there  was  no  arrest  prior 
to  giving  the  bond.  ^^ 

§  73.  Bare  "Words  not  SufiBcient  to  Arrest.  — 
Bare  words  alone  will  not  make  an  arrest,  if  the 
defendant  resists  the  arrest.  ^^  In  such  case  there 
must  be  an  actual  touching  of  the  person  of  the 
defendant  in  order  that  the  arrest  be  effective,^*  and 
in  all  cases  there  must  be  a  restraint  of  the  person, 
—  a  taking  into  custody.  ^^ 

So  where  a  salesman,  upon  suspicion  that  a  person 
had  stolen  goods  from  his  employer's  store,  touched 
the  suspected  person  on  the  shoulder  and  requested 
her  to  return  to  the  store,  which  she  did,  it  was 
held  there  was  no  arrest,  there  being  no  restraint  or 
compulsion  exercised.  ^^ 

And  where  an  officer  had  a  warrant  against  the 
accused,  and  went  upon  his  premises,  saying,  "  I 
arrest  you, "  the  accused  with  a  fork  in  his  hand  pre- 
vented the  officer  touching  him,  and  retreated  from 
the  officer's  presence,  it  was  held  not  to  be  an  arrest, 
because  there  was  no  submission  or  restraint.  ^'^ 

I'"'  McCiacken  v.  Ansley,  4  Strob.  (S.  C.)  1. 

13  Searles  v.  Yiets,  2  Tliomp.  &  C.  (N.  Y.)  224 ;  Hill  r. 
Taylor,  50  Mich.  549;  Conoly  v.  State,  2  Tex.  App.  412; 
Iliissen  V.  Lucas,  1  C.  &  P.  (Eng.  N.  P.)  153. 

"  Genner  v.  Sparks,  1  Salk.  (Eng.  K.  B.)  79. 

15  French  v.  Bancroft,  1  ^letc.  (Mass.)  502;  Kernan  v. 
State,  11  Ind.  471. 

16  Ilershey  v.  O'Neill,  36  Fed.  Rep.  (U.  S.)  168. 
"  Genuer  v.  Sparks,  1  Salk.  (Eng.  K.  B.)  79. 


44  THE   LAW   OF    ARREST 

§  74.  Touching  consummates  Arrest,  though  Ac- 
cused takes  Immediate  Flight.  —  An  officer  effects 
an  arrest  of  a  person  whom  he  has  authority  to 
arrest,  by  laying  his  hand  on  him  for  the  purpose 
of  arresting  him,  though  he  may  not  succeed  in 
stopping  and  holding  him.^^ 

§  75.  Arresting  Hand  may  be  of  Officer's  Assist- 
ant. —  And  it  is  not  necessary  that  the  arresting 
hand  be  the  officer's  own  hand,  but  may  be  that  of 
an  assistant,  even  though  the  officer  is  not  actually 
in  sight ;  yet  when  an  arrest  is  made  by  his  as- 
sistant or  follower,  the  officer  ought  to  be  so  near 
as  to  be  considered  as  acting  in  it.  ^^ 

A  private  person  who  is  a  member  of  a  sheriff's 
posse  may  make  a  legal  arrest,  though  the  sheriff 
is  at  a  considerable  distance  away,  provided  he  is 
within  the  county  proceeding  about  the  business 
of  the  arrest,  because  he  is  then  constructively 
present.  ^^ 

And  the  question  in  these  cases  does  not  turn  on 
the  fact  of  distance,  so  long  as  the  officer  is  within 
his  territory,  and  is  bona  fide  and  strictly  engaged 
in  the  business  of  the  arrest.  So  where  an  officer 
having  a  warrant  to  apprehend  several  persons  who 
had  riotously  assembled  and  when  in  endeavoring 

^8  Whitehead  v.  Keyes,  3  Allen  (Mass.),  495;  U.  S.  v. 
Benner,  Bald.  (U.  S.  c'  C.)  23.9. 

19  Emery  v.  Chesley,  18  N.  H.  198;  Whitehead  v.  Keyes, 
supra  cit. 

20  Robinson  v.  State,  93  Ga.  77. 


WHAT   CONSTITUTES   AN   ARREST  45 

to  serve  his  process  he  was  resisted,  and,  heing 
unable  to  make  the  arrest,  commanded  several 
persons  to  assist  him  and  guard  the  house  while  he 
went  to  the  next  town,  about  four  miles  distant,  to 
get  a  sufficient  force  to  enable  him  to  execute  the 
warrant,  it  was  held  that  the  officer  was  constriic- 
in-eZ// present,  and  that  during  his  temporary  absence 
for  the  purpose  of  getting  further  assistance,  those 
whom  he  had  commanded  to  assist  him,  and  who 
by  that  command  were  bound  to  assist  him,  were 
liable  to  punishment  for  permitting  or  assisting  the 
offenders  to  escape.  ^^ 

§  76.  Time  of  Arrest.  —  A  person  may  be  appre- 
hended on  a  criminal  charge  at  any  time,  in  the 
night  as  well  as  in  the  day,^  and  it  lies  within  the 
officer's  discretion  to  choose  the  night  instead  of 
the  day  for  the  purpose  of  making  an  arrest.  ^^ 
Though  the  common  law  prohibits  arrests  on  Sun- 
days, it  excepts  the  cases  of  treason,  felony,  and 
breach  of   the  peace. ^'^     "  Breach  of  the  peace"  is 

21  Coyles  V.  Hurtin,  10  Johns.  (X.  Y.)  So. 

22  .Mackalley's  Case,  9  Coke  (Eng.  K.  B.),  66;  "Willianis 
V.  State,  41  Ala.  41.  Respecting  arrest  after  sunset  in  civil 
cases,  the  Massachusetts  statute  provides,  "  An  arrest  shall 
not  be  made  after  sunset,  in  cases  in  which  a  certificate  of  a 
magistrate  is  required,  unless  it  is  specially  authorized 
therein  for  cause."     Rev.  Laws  of  Mass.  c.  168,  §  27. 

23  Wright  V.  Keith,  24  Me.  163. 

2*  By  Stat.  29  Car.  II.  c.  7,  §  6,  "  No  person  upon  the 
Lord's  day  shall  serve  or  execute,  or  cause  to  be  served  or 


46  THE  LAW   OF   ARREST 

held  to  include  all  indictable  offences, ^^  therefore 
the  common  law  only  prohibited  arrests  in  civil 
cases  on  Sunday. 

§  77.  Place  of  Arrest.  —  Respecting  the  place  of 
arrest,  it  may  be  said  that  no  place  affords  protec- 
tion to  offenders  against  the  criminal  law.  Yet  to 
preserve  order  and  decorum,  an  arrest  could  not  be 
made  in  open  court,  but  should  be  made  after  the 
adjournment  of  court,  or  outside  the  court-room. 
And  even  the  clergy  may,  on  a  criminal  charge, 
be  arrested  while  in  their  churches, ^^  though  it  is 
illegal  to  arrest  them  in  any  civil  case  while  in  the 
church  to  perform  divine  service,  or  going  to  or 
returning  from  the  same,  on  any  day.^'^ 

Without  a  warrant  an  arrest  can  only  be  made 
in  the  State  wherein  the  offence  was  commited.^** 

§  78.  Officer  must  make  knovirn  his  Authority.  — 
A  person  about  to  be  arrested  is  entitled  to  know 
that  he  is  arrested  by  lawful  authority,^  and  after 

executed,  any  writ,  process,  warrant,  order,  judgment,  or 
decree,  except  in  cases  of  treason,  felony,  or  breach  of  the 
peace." 

25  Rawlins  v.  Ellis,  16  Mees.  &  W.  (Eng.  Exch.)  172 ; 
Keith  V.  Tuttle,  28  Me.  326 ;  Ex  parte  Levi,  28  Fed.  Eep. 
(U.  S.)  651. 

26  Pit  V.  Webley,  Cro.  Jac.  321 ;  State  v.  Dooley,  121  Mo. 
591  ;  Ledbetter  u.  State,  23  Tex.  App.  247. 

^^  Bacon's  Abr.  Trespass,  23. 

28  State  V.  Shelton,  79  N.  C.  605 ;  Tarvers  v.  State,  90 
Tenn.  485;  Malcolrason  v.  Gibbons,  56  Mich.  459.  Contra: 
State  I'.  Anderson,  1  Hill  (S.  C),  327. 

29  State  I'.  Phinney,  42  Me.  384;  Com.  v.  Weathers,  7 


WHAT   CONSTITUTES    AN   ARREST  47 

being  apprised  of  the  lawful  authority,  if  he  sub- 
mits to  the  arrest,^  he  has  a  right  to  know  the 
grounds  on  which  he  is  arrested.  But  a  person 
resisting  arrest  is  not  entitled  to  see  the  warrant 
or  know  its  contents  so  long  as  he  resists  ;^^  and 
whether  he  resists  or  not,  if  he  has  actual  notice 
of  the  lawful  authority  by  which  he  is  arrested,  the 
officer  is  not  obliged  to  show  or  read  his  warrant.*^ 

§  79.     OfiBcer  need  not  Imperil  his  Precept.  —  An 

officer  is  not  required  in  any  case  to  part  with  the 
warrant  from  his  possession,  for  that  is  his  justifi- 
cation.^^ Nor  is  he  bound  to  exhibit  it  when  there 
is  reason  to  apprehend  that  it  will  be  lost  or  de- 
stroyed ;  he  must,  however,  in  some  way  inform  the 

Kulp  (Pa  ),  1;  Kindred  r.  Stitt,  51  111.  401 ;  State  v.  Miller, 
7  Ohio  X.  P.  4.58. 

^  State  V.  Townsend,  5  Harr.  (Del.)  487;  Lewis  i-.  State, 
3  Head  (Tenn.),  127;  Arnold  v.  Steeves,  10  Wend.  (X.  Y.) 
514;  State  v.  Curtis,  2  X.  C.  543:  Plasters  v.  State,  1  Tex. 
App.  673  ;  State  v.  Miller,  7  Ohio  X.  P.  458:  State  v.  Gay, 
18  Mont.  51. 

31  Com.  V.  Cooley,  6  Gray  (Mass.)  350;  Cora.  i-.  Ilewes,  1 
Brewst.  (Pa.)  348. 

82  People  V.  Wilson,  55  Mich.  50G;  see  §  81,  infra;  Com. 
V.  Cooley,  supra  cit. ;  State  v.  Townsend,  5  Harr.  (Del.)  487  ; 
Bellows  ('.  Shannon,  2  Hill  (X.  Y.),  86;  State  v.  Dula,  100 
X.  C.  423;  People  r.  Moore,  2  Doug.  (Mich.)  1;  State  v. 
Spaulding,  34  Minn.  301  ;  Com.  v.  Hewes,  1  Brewst.  (Pa.) 
348;  State  r.  Caldwell.  2  Tyler  (V"t.),  212  ;  U.  S.  v.  Jailer, 
2  Abb.  (U.  S.)  265;  U.  S.  v.  Rice,  1  Hughes  (U.  S.),  560. 
Contra:  Steenerson  v.  Polk  Co.  Com'rs,  68  Minn.  509. 

8«  State  V.  Phinuey,  42  Me.  390. 


48  THE   LAW   OF   ARREST 

party  that  he  has  a  warrant,  and  comes  as  an  officer 
to  execute  it,  and  not  as  a  wrongdoer.^'*  But  the 
arresting  party  is  not  obliged  to  show  his  warrant 
if  the  arrest  might  be  lawfully  made  without  a 
warrant. 

§  80.  Effect  of  OfBcer's  Failure  to  exhibit  his 
Authority.  —  Where  an  arrest  has  been  made  by  a 
party  not  known  to  be  an  officer,  and  who  refuses, 
on  demand,  to  exhibit  his  precept  or  declare  his 
authority,  and  resistance  is  made  to  such  officer, 
and  death  ensues  to  the  officer  from  such  resistance, 
such  killing  will  not  be  murder,  but  manslaughter 
only.  ^^  And  it  has  been  held  that  the  settled  rule 
"  where  a  person  having  authority  to  arrest,  and 
using  the  proper  means  for  that  purpose,  is  resisted, 
he  can  repel  force  with  force,  and  if  the  party  mak- 
ing the  resistance  is  unavoidably  killed,  the  homi- 
cide is  justifiable,"  may  be  invoked  by  a  person 
who  resists  and  kills  the  officer,  if  he  was  ignorant 
of  the  fact  that  he  was  an  officer. ^^ 

The  only  effect  of  the  omission  of  the  officer  to 
declare  his  authority,  or  to  show  his  warrant  where 
it  is  his  duty  to  show  it,  is  to  deprive  him  of  the 
protection  which  the  law  throws  around  its  minis- 
ters, when  in  the  rightful  discharge  of  their  official 
duty.  37 

84  Bellows  V.  Shannon,  2  Hill  (N.  Y.),  86. 

85  State  V.  Phinney,  42  Me.  390. 

86  Starr  v.  United  States,  153  U.  S.  614. 
8'^  State  V.  Phinney,  supra  cit. 


WHAT    CONSTITUTES    AN    ARREST  49 

§  81.  Arrest  by  Known  Of5cer  is  Notice  of 
Authority.  —  A  person  is  held  to  know  that  he  is 
arrested  by  lawful  authority  when  the  arrest  is 
made  by  an  officer,  within  his  own  jurisdiction, 
who  is  generally  known  to  be  an  officer.^  And  this 
knowledge  is  presumed  to  exist  when  the  arresting 
officer  is  in  the  uniform  of  a  police  officer,  or  when 
the  officer  exhibits  tl\e  badge  of  his  office.  ^^ 

But  the  knowledge  will  not  be  presumed  to  exist 
unless  the  circumstances  are  such  that  the  accused 
may  clearly  be  presumed  to  know  that  the  party 
arresting  was  an  officer  in  uniform.  So  where  the 
prisoner,  on  a  dark  night,  was  pursued  by  a  mob, 
which,  having  severely  beaten  him,  now  threatened 
to  kill  him  for  having  wounded  one  of  their  number 
in  a  fight,  and  one  of  the  pursuers,  who  was  an 
officer  in  uniform,  being  in  advance  of  the  others, 
seizes  the  prisoner,  and  the  prisoner  kills  him,  it  is 
a  justifiable  act  of  self-defence,  unless  the  prisoner 
knew  that  the  party  who  had  seized  him  was  an 
officer,  which,  on  account  of  the  existing  darkness 
and  other  circumstances,  was  extremely  doubtful.  *" 

8'  Com.  V.  Cooley,  6  Gray  (Mass.),  3i50;  State  v.  Town- 
send,  5  Harr.  (Del.)  487;  U.  S.  v.  Rice,  1  Hughes  (U.  S.), 
560  ;  People  i\  Moore,  2  Doug.  (Mich.)  1 ;  State  r.  Spauldintf, 
U  Minn.  361;  Bellows  r.  Shannon,  2  Hill  (X.  Y.),  8fJ; 
U.  S.  V.  Jailer,  2  Abb.  (U.  S.)  265;  State  v.  Caldwell,  2 
Tyler  (Vt.),  212;  State  r.  Dnla,  100  N.  C.  423;  Com.  v. 
Hewes,  1  Brewst.  (Pa.)  318. 

'^^  Yates  r.  People,  32  X.  Y.  509. 

*o  Yates  v.  People,  32  N.  Y.  509. 
4 


60  THE    LAW   OF    ARREST 

§  82.  One  not  a  Known  Officer  must  show  his 
"Warrant.  —  Any  one  who  is  not  a  known  officer 
acting  within  the  limits  of  his  jurisdiction  must 
exhibit  his  warrant  before  making  an  arrest,  if 
called  upon  to  do  so  by  the  party  whose  arrest  is 
sought,  if  the  warrant  is  necessary  to  the  arrest.  ^^ 
And  a  special  officer  must  show  his  warrant  if  de- 
manded,  not  otherwise.*^ 

§  83.  Actual  Notice  obviates  Necessity  of  Read- 
ing Warrant.  —  Actual  notice  to  the  arrested  party, 
in  any  manner,  that  the  arrest  is  by  lawful  author- 
ity, releases  the  officer  from  his  duty  to  show  his 
warrant  or  read  it  to  the  accused.**' 

§  84.  Strangers  not  entitled  to  Notice.  —  And  in 
no  case  is  an  officer  obliged  to  show  his  warrant  to 
any  person  other  than  the  party  arrested,  nor  to 
him  except  on  request.** 

§  85.  Notice  may  be  Constructive.  —  Notice  of 
authority  to  arrest  may  also  be  presumed  from  the 

*i  People  V.  Moore,  2  Doug.  (Mich.)  1;  Bate.s  r.  Com., 
13  Ky.  L.  Rep.  132;  State  v.  Stancill,  128  N.  C.  6U6;  Frost 
V.  Thomas,  24  Wend.  (N.  Y.)  418 ;  Arnold  v.  Steeves,  10 
Wend.  (X.  Y.)  514;  State  i?.  Dula,  100  N.  C.  423;  Cortez 
V.  State,  69  S.  W.  (Tex.)  536 ;  State  v.  Garrett,  60  N.  C. 
144.     But  see  U.  S.  v.  Rice,  1  Hughes  (U.  S.),  560. 

^2  State  f.  Dula,  supra  cit. ;  State  v.  Curtis,  2  N.  C.  543. 

43  Com.  V.  Cooley,  6  Gray  (Mass.),  350;  State  v.  Town- 
send,  5  Harr.  (Del  )  487;  People  v.  Wilson,  55  Mich.  506. 

«  1  East  P.  C.  317  ;   1  Hale's  P.  C.  458. 


WHAT   CONSTITUTES   AN   ARREST  51 

circumstances  of  the  case ;  as  where  even  a  private 
person  attempts  to  arrest  one  in  the  act  of  commit- 
ting a  felony,  or  where  the  offender  is  immediately 
pursued  from  the  scene  of  his  crime,  it  is  sufficient 
notice  to  the  party  whose  arrest  is  sought.  ^^ 

§  86.  Resisting  Arrest.  —  Mere  resistance  of  legal 
arrest  is  a  crime, ^^  because  it  involves  an  assault 
upon  the  officer;  and  if  the  arresting  person  is 
killed  by  the  accused  or  his  friends,  it  is  murder.*" 
If  the  resisting  person  is  killed,  it  is  no  more  than 
manslaughter,  and  may  be  a  justifiable  homicide.*^ 
But  a  person  illegally  arrested  may  use  such  force 
as  is  necessary  to  regain  his  liberty,  and  should 
there  be  reasonable  ground  to  believe  that  the 
officer  making  the  arrest  intends  shooting  the  pris- 
oner to  prevent  his  escape,  such  prisoner  may  shoot 
the  officer  in  self-defence.*^  If,  however,  the  per- 
son resisting  illegal  arrest  kills  merely  to  prevent 
the  arrest,  and  not  for  the  purpose  of  saving  himself 
from  serious  personal  injury,  he  is  guilty  of  man. 
slaughter,  but  not  of  murder.  ^^ 

And  whether  the  arrest  be  legal  or  not,  the  power 
of  arrest  may  be  exercised  in  such  a  wanton  and 

«  Wolf  y.  State,  19  Ohio  St.  248;  Shovlin  v.  Com.,  106 
Pa.  St.  369  ;  People  v.  Pool.  27  Cal.  572. 

*«  People  v.  Haley,  48  Mich.  495  ;  State  i-.  Belk,  76  N.  C.  10. 

^■^  iMockabee  r.  Com.,  78  Ky.  380. 

48  State  V.  Rose,  142  Mo.  418. 

"9  :Mier.s  v.  State,  34  Tex.  Cr.  Rep.  161. 

50  Com.  y,  Carey,  12  Cush.  (Mass.)  246. 


52  THE   LAW   OF   ARREST 

menacing  manner  as  to  threaten  the  accused  with 
loss  of  life,  or  some  bodily  harm.  In  such  a  case, 
though  the  attempted  arrest  was  lawful,  the  killing 
would  be  justifiable.^^  A  charge  of  resisting  an 
officer  cannot  be  sustained  unless  the  officer  resisted 
was  authorized  by  law  to  make  the  arrest  at  the 
time  and  place  where  the  arrest  was  attempted. ^^ 
If  the  arrest  was  by  warrant,  the  process  must  have 
been  valid  on  its  face,  and  from  a  court  of  compe- 
tent jurisdiction.^^  It  is  no  defence  to  a  charge  of 
resisting  an  officer,  that  the  person  whose  arrest  was 
attempted  was  not  guilty  of  the  offence  charged.^* 
But  where  the  arrest  of  the  wrong  person  is  at- 
tempted, the  arrest  may  be  resisted.  °^ 

§  87.  After  making  Arrest.  —  OfScer's  Duty.  —  It 
is  the  officer's  duty,  upon  making  an  arrest,  to  keep 
the  prisoner  within  his  custody  until  he  is  lawfully 
committed,  discharged,  or  admitted  to  bail  by  order 
of  the  court.  ^^ 

^1  Jones  V.  State,  26  Tex.  App.  1 ;  State  v.  Dennis,  2 
Marv.  (Del.)  433. 

52  Cantrill  v.  People,  3  Gil.  (111.)  357;  State  v.  Estis,  70 
Mo.  427 ;  State  i-.  Hooker,  17  Vt.  658. 

53  State  v.  Leach,  7  Conn.  452 ;  Housh  v.  People,  75  111. 
491;  State  v.  Beebe,  13  Kan.  589;  People  v.  Ah-Teung,  92 
Cal.  421 ;  State  v.  Jones,  78  N.  C.  420. 

"  Com.  V.  Tracey,  5  Mete.  (Mass.)  552 ;  State  v.  Garrett, 
80  Iowa,  590. 

55  Wentworth  v.  People,  4  Scam.  (111.)  555;  State  v.  Free- 
man, 8  Iowa,  428. 

56  Com.  L\  Morihan,  4  Allen  (Mass.),  585. 


what  constitutes  an  arrest  53 

Escape. 

§  88,  Definition.  —  Escape  is  departure  of  a  pris- 
oner from  custody  before  he  is  discharged  by  due 
process  of  law.  5' 

§  89.  Liability  of  Officer.  —  Should  the  officer, 
by  his  willingness  or  negligence,  allow  the  prisoner 
to  escape  from  his  custody,  he  is  liable. °^  It  is  not 
conclusive  evidence  of  negligence  against  the  officer 
that  he  did  not  handcuff  his  prisoner.  ^^ 

If  the  escape  is  voluntary,  and  the  prisoner  was 
guilty  of  felony,  the  escape  is  a  felony  on  the  part 
of  the  officer.  ^^  If  the  escape  is  merely  by  the  offi- 
cer's negligence,  it  is  only  a  misdemeanor  in  any 
case. 

The  only  excuse  that  an  officer  can  set  up,  when 
answering  for  the  escape  of  a  prisoner,  is  that  it 
w^as  by  act  of  God,  or  the  enemies  of  the  country, '^^ 
that  is,  the  members  of  a  nation  at  war  with  our 
country.  But  an  officer  is  not  criminally  respon- 
sible for  an  escape  by  reason  of  the  negligence  of 

"  Bouvier's  Law  Diet.  (Escape)  ;  Com.  v.  Farrell,  5  Allen 
(Mass.).  130;  State  v.  Davis,  14  Nev.  446;  Butler  r.  Wash- 
burn, 25  N.  H.  251  ;  Randall  v.  State,  53  N.  J.  L.  488;  Ex 
parte  Clifford,  29  Ind.  106:  State  v.  Brown,  82  X.  C.  585. 

68  State  V.  Ritchie,  107  N.  C.  857;  Garver  i'.  Ter.,  5  Okla. 
342  ;  Shattuck  i'.  State,  51  Miss.  575. 

69  State  V.  Hunter,  94  N.  C.  829. 
w  2  Hawkins'  PI.  C.  c.  19,  §  25. 

61  Fairchild  v.  Case,  24  Wend.  (N.  Y.)  383. 


54  THE   LAW   OF   AEREST 

an  assistant,  if  he  used  due  care  in  selecting  and 
appointing  the  assistant.  ^^ 

If  an  officer  makes  an  arrest,  and  has  the  prisoner 
admitted  to  bail  in  the  same  county,  on  an  indorsed 
warrant  issued  in  another  county,  he  is  guilty  of  a 
voluntary  escape.  In  such  case  it  is  the  officer's 
duty  to  retake  the  prisoner,  and  he  may  do  so  on 
the  same  warrant. '^^ 

And  where  a  constable  arrested  the  defendant  on 
a  warrant  issued  by  a  justice  of  the  peace,  and  left 
him  on  his  promise  to  follow  him,  and  the  accused 
was  later  arrested  by  a  deputy  sheriff,  and  taken  to 
jail  on  a  criminal  process,  so  that  the  constable  could 
not  take  him  before  the  justice  of  the  peace  on  the 
warrant,  it  was  held  that  by  the  constable  leaving 
his  prisoner,  after  effecting  the  arrest,  there  was  a 
voluntary  escape,  and  the  officer,  being  unable  to 
retake  him,  was  held   liable  for  the  escape.^"* 

There  can  be  no  escape  from  custody  where  the 
arrest  was  made  by  a  void  warrant, ^^  or  where  the 
act  of  taking  into  custody  did  not  in  itself  amount 
to  an  arrest. 

An  officer  may  arrest  with  or  without  warrant^ 

62  state  r.  Lewis,  113  N.  C.  622. 

«3  Clark  V.  Cleveland,  6  Hill  (N.  Y.),  344. 

64  Olmstead  v.  Raymond,  6  Johns.  (N,  Y.)  62. 

«5  Housh  v.  People,  75  111.  487;  Hitchcock  v.  Baker,  2 
Allen  (Mass.),  431. 

66  Com.  V.  Sheriff,  1  Grant  (Pa.),  187 ;  Floyd  v.  State, 
79  Ala.  39;  Clark  v.  Cleveland,  6  Hill  (N.  Y.),  344;  State 


WHAT   CONSTITUTES   AN   ARREST  55 

one  who  has  escaped  from  custody  either  before  or 
after  trial  and  commitment/^''  and  it  is  immaterial 
whether  the  offence  originally  charged  was  a  crime 
or  misdemeanor,  or  whether  the  person  escaping  was 
guilty  or  innocent  of  the  offence  charged,  because  an 
unlawful  departure  from  legal  custody  is  always  a 
criminal  offence. ^^  If  an  officer  makes  an  illegal 
arrest,  and  then  accepts  a  bribe  from  his  prisoner  to 
allow  him  to  escape,  he  is  guilty  of  bribery  not- 
withstanding the  arrest  was  illegal.  ^^ 

V.  Wamire,  16  Ind.  3.57;  Hollon  v.  Hopkins,  21  Kan.  6-38. 
But  see  Doyle  v.  Russell,  30  Barb.  (X.  Y.)  300. 

«^  McQueen  v.  State,  130  Ala.  136. 

«8  Com.  V.  Miller,  2  Ashra.  (Pa.)  68;  Holland  v.  State, 
60  Miss.  939  ;  State  v.  Bates,  23  Iowa,  96. 

*^  Mosely  v.  State,  25  Tex.  App.  515. 


56  THE   LAW   OP    ARREST 


CHAPTER   V 
ARREST   WITH    WARRANT 

§  90.  Name  of  Arrested  Party  must  appear  in 
■Warrant,  —  A  warrant  will  not  justify  the  arrest  of 
one  not  named  therein,  by  reason  of  the  fact  that 
the  name  used  was  supposed  to  be  his.  ^ 

§  91.  Valid  "Warrant  protects  Officer.  —  If  a  war- 
rant is  lawful  and  regular  on  its  face,  disclosing  no 
want  of  jurisdiction  or  other  irregularity,  and  the 
magistrate  issuing  it  has  lawful  authority  to  do  so, 
the  warrant  is  a  complete  protection  to  the  officer 
who  makes  the  arrest.^  And  a  valid  warrant  pro- 
tects an  officer  even  though  it  be  known  that  it  was 
procured  by  fraud.  ^ 

§  92.  Invalid  "Warrant  is  no  Protection.  —  If  a 
warrant  is  not  valid  on  its  face,  or  if  the  whole 
subject-matter  is  without  the  jurisdiction  of   the 

1  West  V.  Cabell,  153  U.  S.  78. 

2  Clark  V.  May,  2  Gray  (Mass.),  410;  Wright  v.  Keith, 
24  Me.  158;  Housh  v.  People,  75  111.  491;  State  v.  James,  80 
N.  C.  370;  Mangold  v.  Thorpe,  33  N.  J.  L.  134.  See  §  29, 
supra. 

8  Wilmarth  v.  Burt,  7  Mete.  (Mass.)  257. 


ARREST  WITH   WARRANT  57 

magistrate,  the  officer  is  really  acting  without  any 
warrant  at  all,  and  thereby  becomes  a  trespasser, 
if  a  private  person  under  the  same  circumstances 
would  be  a  trespasser.  Tt  is  held  by  some  authori- 
ties that  the  officer's  life  may  be  taken,  if  neces- 
sary, in  resisting  such  unlawful  arrest,^  while  other 
decisions  hold  that  in  case  of  an  attempted  illegal 
arrest  by  a  known  officer,  it  is  not  lawful  to  take  life 
in  resisting  the  arrest,  and  that  if  a  person  kills  a 
known  officer  to  prevent  him  making  an  illegal 
arrest,  he  is  guilty  of  manslaughter  at  least,^  and 
may  be  guilty  of  murder  if  the  killing  was  prompted 
by  personal  malice  against  the  officer.^  If  an  officer 
kills  in  the  act  of  serving  void  process,  he  is  guilty 
of  murder.  And  here  it  may  be  noted  that  through- 
out the  law  of  arrest,  the  necessity  of  the  case,  when 
human  life  is  to  be  taken,  is  of  paramount  impor- 
tance, for  nothing  short  of  the  sternest  necessity  will 
justify  the  act. 

A  party  cannot  reasonably  apprehend  any  serious 
consequences  to  himself  by  submission  to  an  illegal 
arrest  by  a  known  officer,  beyond  a  temporary  in- 
vasion of  his  right  of  personal  liberty,  and  the  law 
does  not  sanction  the  taking  of  life  to  repel  every 
threatened  trespass,  or  invasion  of  personal  rights.' 

<  Com.  V.  Crott}%  10  Allen  (Mass.),  403. 
^  State  V.  Cantieny,  34  ]Minii.  1. 
«  Rafferty  r.  People,  I'l  111.  37. 

"  Com.  V.  Drew,  4  ]\Iass.  391 ;  State  r.  Cantieny,  supra 
cit. ;  Williams  v.  State,  44  Ala.  41. 


58  THE   LAW   OF    ARREST 

§  93.  When  a  "Warrant  is  Void.  —  A  warrant  is 
void  if  it  has  no  seal,^  when  a  seal  is  required  by 
statute,  or  if  it  is  not  supported  by  sufficient  oath 
or  affirmation  and  that  fact  appear  on  its  face,^  or 
if  it  does  not  sufficiently  describe  the  person  to  be 
arrested,  so  that  from  the  description  he  may  be 
identified ;  ^^  as  where  a  warrant  is  issued  against 
"  John  Doe  or  Richard  Eoe,  whose  other  or  true 
name  is  to  your  complainant  unknown, "  with  no 
other  description  or  means  of  identification,  the 
warrant  is  absolutely  void  and  may  be  resisted 
with  all  necessary  force.  ^^ 

§  94.  Rights  of  Strangers  to  interfere.  —  As  a  gen- 
eral rule,  if  the  warrant  be  materially  defective,  or 
the  officer  exceeds  his  authority  in  executing  it,  any 
third  person  may  lawfully  interfere  to  prevent  an 
arrest  under  it,  doing  no  more  than  is  actually 
necessary  for  that  purpose.  ^^ 

§  95.  Liability  of  Officer's  Assistant.  —  If  the 
officer  is  liable  as  a  trespasser,  especially  in  the 
service  of  civil  process,  the  assistant  of  such  officer 
may  also  be  liable  in  trespass.  ^^ 

8  State  V.  Drake,  36  Me.  366.  Contra :  Millett  v.  Baker, 
42  Barb.  (N.  Y.)  215.     See  §  50,  supra. 

8  Griimon  v.  Raymond,  1  Conn.  40. 

10  Com.  V.  Crotty,    10  Allen  (Mass.),  403. 

"  Com.  V.  Crotty,  supra  cit. 

12  Com.  V.  Crotty,  supra  cit.;  Rex  v.  Osmer,  S^East  (Eng. 
K.  B.),  304. 

"  Darling  v.  Kelley,  113  Mass.  29. 


ARREST   WITH   WARRANT  59 

§  96.  Taking  Prisoner  before  a  Magistrate.  —  The 
disposing  of  the  prisoner  becomes  a  very  important 
matter  after  the  consummation  of  a  legal  arrest,  for 
if  the  disposition  be  not  according  to  law,  and  as 
directed  in  the  warrant,^*  the  officer  will  render 
himself  liable  for  the  abuse  of  his  process.  The 
first  duty  after  making  the  arrest  is  to  bring  the 
prisoner  with  all  reasonable  speed  ^^  before  a  magis- 
trate for  examination,  ^^  but  if  the  prisoner  is  physi- 
cally incapacitated  to  be  so  brought,  or  if  from  other 
circumstances  an  immediate  hearing  is  impossible, ^^ 
the  officer  may  delay  until  the  incapacity  disap- 
pears, but  no  longer. 

The  warrant  need  not  state  the  time  when  the 
party  is  to  be  brought  before  the  magistrate  for 
the  examination,^^  but  it  being  the  duty  of  every 

1"  2  Hale's  P.  C.  119  ;  Pratt  r.Hill,  16  Barb.  (X.  Y.)  303. 

i»  Green  v.  Kennedy,  46  Barb.  (X.  Y.)  16 ;  Gary  v.  State, 
76  Ala.  78;  Habersham  v.  State,  56  Ga.  61. 

16  Brock  V.  Stimson,  108  Mass.  520;  Ocean  Steamship  Co. 
r.  AVilliams,  69  Ga.  251 ;  Twilley  v.  Perkins,  77  Md.  252  ; 
Pastor  V.  Regan,  62  N.  Y.  St.  204  ;  Judson  v.  Reardon,  16 
Minn.  431;  Gary  v.  State,  76  Ala.  78;  Simmons  v.  Vandyke, 
138  Ind.  380;  State  r.  Freeman,  86  X.  G.  683;  Muscoe  v. 
Com.,  86  Va.  443;  Missouri,  etc.  R.  Co.  r.  Warner,  19  Tex. 
Civ.  App.  403;  Ashley  v.  Dundas,  5  Up.  Can.  Q.  B.  o.  s. 
749. 

"  Rohan  v.  Sawin,  5  Cush.  (Mass.)  281;  Wiggins  r. 
Norton,  83  Ga.  148;  State  v.  Freeman,  86  N.  G.  683; 
Hutchinson  v.  Sangster,  4  Greene  (Iowa),  340;  Scircle  v. 
Neeves,  47  Ind.  289. 

18  Mayhew  v.  Parker,  8  T.  R.  (Durnf.  &  E.  Eng.  K.  B.) 
110. 


60  THE   LAW   OF   ARREST 

person  who  makes  an  arrest,  whether  he  he  an 
officer  or  a  private  party,  to  bring  the  prisoner 
before  the  proper  magistrate  without  delay,  a  fail- 
ure of  the  arresting  party  to  do  so  promptly  will 
make  him  guilty  of  false  imprisonment.  ^^  Intoxi- 
cation of  the  prisoner,  for  example,  will  excuse 
delay  in  this  respect  so  long  as  the  intoxication 
exists.  2"  The  duty  to  present  the  prisoner  for  ex- 
amination is  the  same  whether  the  arrest  be  with 
or  without  a  warrant. 

§  97.  OiScer's  Right  to  release  Prisoner.  —  By 
the  common  law ,  an  oiftcer  may  make  an  arrest 
'upon  reasonable  grounds  of  suspicion,  and  if  his 
suspicions  vanish,  he  may  discharge  the  prisoner 
without  bringing  him  before  a  magistrate. ^^  But 
this  provision  of  the  common  law  does  not  authorize 
the  officer  to  detain  the  prisoner  for  the  purpose  of 
verifying  his  suspicions. 

§  98.  OfEcer's  Right  to  detain  Prisoner. — When 
an  officer  under  a  warrant  from  a  county  court, 
commanding  him  to  arrest  the  respondent,  and 
have   him    brought    before    that   court    forthwith, 

^»  Porter  r.  Swindle,  3  S.  E.  Rep.  (Ga.)  94;  Burke  v. 
Bell,  36  Me.  317. 

20  Arneson  v.  Thorstad,  33  N.  W.  Rep.  (Towa),  607; 
Wiltse  V.  Holt,  95  Ind.  469;  Scircle  r.  Neeves,  47  Ind.  289; 
State  V.  Freeman,  SG  N.  C.  683 ;  Hutchinson  v.  Sangster,  4 
Greene  (Iowa),  340. 

21  Barke  v.  Bell,  supra  cit. 


ARllEST   WITH   WARRANT  61 

arrests  the  respondent,  brings  him  to  the  place  of 
holding  such  court,  hut  finds  the  court  not  in  ses- 
sion, he  may  detain  the  respondent  a  reasonable 
time  until  he  can  ascertain  whether  it  is  possible 
to  deliver  him  into  court,  and  may  lodge  him  in 
jail  in  the  mean  time  for  safe-keeping.^ 

§  99.  Impossibility  as  a  Defence.  —  It  sometimes 
happens  that  it  becomes  impossible  for  an  officer  to 
perform  a  duty  which  the  law  has  commanded  him 
to  do,  but  the  impossibility  is  a  good  defence  to  an 
indictment  for  not  performing  the  duty.^*^ 

If,  for  example,  an  officer  has  been  commanded 
to  deliver  a  prisoner  to  a  certain  official,  or  to  have 
him  at  a  certain  place,  and  the  official  or  the  place 
has  ceased  to  exist,  the  officer  is  excused  from  the 
performance  of  the  command  of  the  law,  and  would 
be  justified  in  confining  his  prisoner  in  a  suitable 
place  until  further  order  could  be  procured  from  the 
court  for  the  disposition  of  the  prisoner. 

§  100.  The  Place  of  Confinement. —  Even  a  freight 
car  is  not,  as  a  matter  of  law,  an  unsuitable  place 
for  confining  a  prisoner.  2*  But  it  might  be,  as  a 
matter  of  fact  for  a  jury  to  consider,  as,  for  ex- 
ample, if  the  freight  car  should  expose  the  prisoner 
to  the  inclemency  of  the  weather,  or  otherwise  en- 
danger  his   health.      So  where  an  ofiicer   arrested 

22  Kent  V.  Miles,  65  Vt.  582. 

28  Tate  V.  State,  5  Blackf.  (Ind.)  73. 

24  Arnesou  v.  Tliorstad,  33  N.  W.  Kep.  (Towa),  607. 


62  THE  LAW   OP   ARREST 

one  upon  a  charge  of  drunkenness,  and  confined 
him  in  the  city  guard-house,  where  during  the 
night  the  prisoner  died,  the  jury  finding  that  his 
death  was  "  accelerated  by  the  noxious  air  of  the 
guard-house,"  tlie  city  was  held  liable  for  thus  im- 
properly confining  the  prisoner. ^^ 

An  officer  being  responsible  for  the  safety  of  his 
prisoner,  the  place  of  confinement  is  left  largely  to 
his  discretion.  And  it  was  held  that  a  United  States 
marshal  was  justified  in  confining  his  prisoner  in 
the  State  Penitentiary  instead  of  the  county  jail, 
when,  in  his  opinion,  the  safety  and  security  of  the 
prisoner  required  it.^^ 

§  101,     Exercise  of  OfScer's  own  Judgment.  —  The 

question  of  what  constitutes  reasonable  necessity  very 
frequently  arises  in  matters  pertaining  to  the  law  of 
arrest.  And  it  may  be  said  that  whenever  an  officer 
is  called  upon  to  exercise  his  own  judgment,  in  any 
matter,  the  law  not  instructing  him  as  to  the  course 
which  he  shall  pursue,  he  is  not  liable  if  he  does 
that,  which,  considering  all  the  circumstances  of 
the  case,  any  other  man  of  fair  average  intelligence 
would  do  under  similar  circumstances.  That  is, 
he  is  not  required  to  exercise  the  highest  grade  of 
judgment,  but  he  must  not  fall  below  that  which  is 
expected  from  the  man  of  a  fair  average  intellect. 
And  any  act  or  omission  of  an  officer  which  arises 

26  Lewis  r.  City  of  Raleigh,  77  N.  C.  229. 
26  Cliutou  V.  Nelson,  2  Utah,  284. 


ARREST   WITH    WARRANT  63 

from  the  necessity  of  the  case,  v/ill  justify  the 
officer  in  acting  or  not  acting  only  so  long  as  the 
necessity  exists.^" 

§  102.  Prisoner  may  vraive  Right  to  be  taken 
before  a  Magistrate.  —  When  the  statute  provides 
that  the  person  arrested  be  brought  before  a  magis- 
trate, the  officer  is  liable  for  false  arrest  if  he  dis- 
charges the  prisoner  without  bringing  him  before  a 
magistrate,  unless  there  is  an  express  waiver  by 
the  prisoner  of  his  right  to  be  taken  before  a 
magistrate.  ^^ 

As  where  an  officer  arrested  the  accused  for  in- 
toxication, between  one  and  two  o'clock  in  the 
morning,  on  a  Sunday,  and  detained  him  until  be- 
tween seven  and  eight  o'clock  in  the  afternoon  of 
the  next  day,  when  it  w^as  found  that  the  trial 
justice  was  detained  out  of  town  by  reason  of 
an  unusual  freshet  which  had  rendered  travelling 
unsafe.  These  facts  were  communicated  to  the 
accused,  and  upon  his  own  request  he  was  released 
from  custody.  Held,  that  an  action  for  false  im- 
prisonment did  not  lie.  ^^ 

When,  however,  the  arrest  is  by  warrant,  the 
duty  of  the  officer  to  take  the  prisoner  before  a 
magistrate  is  an  absolute  duty ;  therefore  the  pris- 
oner may  not   then  waive   his  right   to   be  taken 

27  Tubbs  V.  Tukey,  3  Cush.  (Mass.)  438. 

28  Brock  V.  Stimson,  108  Mass.  520;  Pbillips  v.  Fadden, 
125  Mass.  198;  Caffiey  v.  Drugan,  U4  Mass.  294. 

29  Caffrey  v.  Drugau,  supra  cit. 


64  THE   LAW   OF    ARREST 

before  the  magistrate,  and  nothing  except  impos- 
sibility will  excuse  the  officer  from  obeying  the 
command  of  the  law. 

Civil  Arrest.  ^'^ 

§  103.  Constitutional  Prohibitions.  —  Fraud.  — 
Imprisonment  for  debt  arising  out  of  contract  is 
generally  prohibited  by  constitutional  provisions ;  ^^ 
but  these  provisions  do  not  apply  where  fraud  is 
a  factor  in  the  charge  ^'^  And  the  fraud  charged 
must  relate  to  procuring  the  contract  to  be  made,  or 
in  attempting  to  evade  performance.^^ 

Constitutional  or  statutory  abolishments  of  im- 
prisonment for  debt  do  not  apply  to  tort  actions, '*'* 
although  the  right  to  arrest  in  tort  actions  is  ex- 
tensively regulated  by  the  statutes  of  the  several 
States.  Nor  do  they  apply  to  arrest  for  the  non- 
payment of  taxes.  ^^ 

§  104.     statutes     must     be     Strictly    followed. — 

A  statute  authorizing  an  arrest  on  civil  process 
must  be  so  strictly  construed  that  process  will  only 

33  Refer  to  index  for  other  matters  pertaining  to  tliis 
subject. 

31  Act  of  Congress,  Feb.  28,  1839. 

32  Appleton  V.  Hopkins,  5  Gray  (Mass.),  530. 

33  In  re  Tyson,  32  Mich.  262. 

3*  McDuffie  ('.  Beddoe,  7  Hill  (N.  Y.),  578  ;  U.  S.  v.  Ban- 
ister, 70  Fed.  Hep.  (U.  S.)  4i;  Sedgebeer  v.  Moore,  Brightley 
(Pa.),  197. 

35  Appleton  V.  Hopkins,  supra  cit. 


ARREST   WITH    WARRANT  65 

issue  in  cases  that  are  clearly  within  the  statute,^^ 
and  all  the  proceedings  in  the  arrest  must  strictly 
follow  the  statutory  provisions. 

§  105.  Debtor  about  to  leave  State.  —  Where 
the  statute  provides  for  the  arrest  of  a  debtor  wlio 
is  about  to  leave  the  State  with  intent  to  avoid  tiie 
payment  of  his  debts,  he  is  not  subject  to  such 
arrest  if  he  leaves  for  a  temporary  absence  only,^'' 
or  if  he  leaves  sufficient  property  within  the  State 
for  the  payment  of  the  particular  debt  for  wdiich 
he  is  arrested,  although  he  does  not  leave  sufficient 
property  for  the  payment  of  all  his  debts, ^^  or  if  he 
leaves  the  State  for  the  bona  fide  purpose  of  seek- 
ing employment  elsewhere,  or  improving  his  con- 
dition. ^^ 

§  106.  Must  be  a  Fraudulent  Intent.  —  To  jus- 
tify the  arrest,  an  intent  to  defraud  must  be  proved.'*'^ 
A  fraudulent  intent  also  must  be  proved  where  an 
arrest  is  under  a  statute  authorizing  an  arrest  for 
the  fraudulent  concealment  of  property  from  a 
creditor.  Therefore,  one  who  wears  his  watch  and 
carries  his  money  with  him  in  his  usual  manner  is 

s"  Meri'itt  v.  Openheim,  9  La.  Ann.  51  ;  Ilatliaway  v. 
Johnson,  55  N.  Y.  93. 

8-  ^lyall  V.  Wright,  2  Bush  (Ky.)^  130. 

88  Carraby  v.  Davis,  6  Mart.  n.  s.  (La.)  103. 

^^  Stevenson  v.  Smith,  28  N.  IL  12. 

*'^  Traniblay  v.  Graham,  7  Montreal  Super.  Ct.  37-1 ; 
Devries  i\  Summit,  86  N.  C.  126;  Hudson's  Case,  2  Mart. 
(La.)  172. 

5 


66  THE   LAW    OF   ARREST 

not  guilty  of  the  fraudulent  intent  which  is  essen- 
tial to  the  maintenance  of  the  action. *i 

§  107.  Affidavit  required  by  Statute.  —  The  usual 
statutory  provisions  relating  to  the  application  for 
the  writ  or  warrant  for  a  civil  arrest  require  that  an 
attidavit  be  filed  setting  forth  the  facts  constituting 
the  cause  for  arrest. 

This  affidavit  must  state  that  the  affiant  believes 
and  has  reason  to  believe  that  the  defendant  has 
property  not  exempt  from  execution  which  he  does 
not  intend  to  apply  to  plaintiff's  claim. ^^ 

If  the  arrest  is  to  be  made  because  the  defendant 
is  about  to  leave  the  State,  the  affidavit  must  not 
only  state  that  the  defendant  is  about  to  leave  the 
State,  but  must  also  aver  that  the  affiant  believes 
that  the  debtor  is  leaving  with  intent  to  defraud  his 
creditors,  after  which  probable  cause  for  entertain- 
ing the  belief  should  be  shown  by  setting  forth  the 
facts  upon  which  the  belief  is  based.  *^ 

§  108.  Effect  of  Altering  Writ.  —  If  the  writ  is 
altered  before  it  is  served,  a  new  aifidavit  is  neces- 
sary or  the  arrest  will  be  illegal.^*  ■ 

§  109.  No  Arrest  after  Attachment.  —  An  arrest 
made  after  an  attachment  of  property  in  the  same 
action  is  altogether  void.^^ 

«  Clement  v.  Dudley,  42  N.  H.  367. 

42  Stone  V.  Carter,  13  Gray  (Mass.),  575. 

43  Wilson  V.  Barnhill,  64  N.  C.  121. 

4*  Aniadon  v.  Mann,  3  Gray  (Mass.),  467. 
«  Almy  V.  Wolcott,  13  Mass.  76. 


ARREST   WITH    A    M'ARRANT  67 

§  110.  OflEcer'a  Liability  for  Escape.  —  An  officer 
has  authority  to  call  for  assistance  in  making  an 
arrest  on  mesne  process,  but  he  is  not  obliged  to  do 
so.  And  he  is  not  liable  for  an  escape  that  might 
have  been  prevented  by  his  calling  for  aid,  if  the 
party  arrested  by  him  rescues  himself  or  is  rescued 
by  others.  ^^ 

§  111.  Insolvency  Proceedings.- — AMiere  a  de- 
fendant has  been  legally  arrested  in  a  civil  action, 
and  while  in  custody  files  his  voluntary  petition  in 
insolvency,  he  is  not  thereby  entitled  to  be  released 
from  arrest.*^ 

46  AVhitehead  v.  Keyes,  3  Allen  (Mass.),  500;  Sutton  v. 
Allison,  2  Jones  (X.  C),  3il. 

*^  Hussey  v.  Danforth,  77  Me.  17. 


68  THE    LAW    OF   ARREST 


CHAPTER   VI 
ARREST   WITHOUT   A   WARRANT 

§  112.     By   Private  Person  in   Case   of    Felony.  — 

A  private  person  may  arrest  without  a  warrant  cue 
whom  he  sees  committing  a  felony,  or  when  a  felony 
has  been  actually  committed,  and  he  has  reasonable 
grounds  within  his  own  knowledge  —  that  is,  not 
merely  from  the  hearsay  evidence  of  the  statements 
of  third  persons  —  for  believing  that  the  person 
whom  he  places  under  arrest  is  the  felon.  ^  But  he 
has  no  right  to  make  an  arrest  without  a  warrant 
when  a  felony  has  not  in  fact  been  committed,  no 
matter  how  well  founded  may  have  been  his  belief 
that  a  felony  had  been  'committed.  In  other  words, 
an  arrest  for  felony  by  a  private  person  without  a 
warrant  is  lawful  only  when  a  felony  has  actually 
been  committed,  and  he  can  justify  his  act  of  arrest 
by  proof  of  the  commission  of  the  felony.^ 

1  Ilolley  r.  Mix,  3  Wend.  (N.  Y.)  351;  Ashley's  Case,  12 
Coke  (Eng,  K.  B.),  90;  Dodds  v.  Board,  43  111.  95;  State  v. 
Mowry,  37  Kan.  369  ;  Kennedy  v.  State,  107  Ind.  144;  Brooks 
V.  Com.,  61  Pa.  St.  352  ;  Long  v.  State,  12  Ga.  293 ;  Wriglit 
V.  Com.,  85  Ky.  123. 

2  "  Even  when  there  is  only  probable  cause  of  suspicion, 
a  private  person  may,  without  warrant,  at  his  peril,  make  an 
arrest.     I  say  at  his  peril,  for  nothing  short  of  proving  the 


ARREST    WITHOUT   A   WARRANT  69 

If  a  felony  has  actually  been  committed,  a  private 
person  is  justified  in  arresting  one  whom  he  has 
good  reason  to  believe  to  be  guilty  of  it,  even 
though  the  person  arrested  should  afterward  be 
proven  to  be  innocent.^ 

§  113.  Assisting  a  Private  Person.  —  A  private 
person  who  has  no  reasonable  grounds  within  his 
own  knowledge  to  believe  that  a  felony  has  been 
committed,  has  no  right  to  assist  another  private 
person  in  making  an  arrest,  who  is  acting  without 
a  warrant  upon  reasonable  suspicion  which  would 
justify  him  in  making  the  arrest.^  But  if  a  private 
person  knows  that  the  one  whom  he  seeks  to  arrest 

felony  will  justify  the  arrest,"  Tilghmax,  C.  J.,  in  Wakely 
V.  Ilart,  6  Binn.  (Pa.)  316  ;  Geary  v.  Stephenson,  169  Mass. 
23;  Carr  v.  State,  43  Ark.  99;  Teagarden  v.  Graham,  31 
Ind.  422;  Davis  v.  U.  8.,  16  App.  Cas.  (D.  C.)  442;  Groom 
V.  State,  85  Ga.  718;  Kindred  r.  Stitt,  51  111.  101  ;  Siegel  r. 
Connor,  70  111.  App.  110;  Cryer  v.  State,  71  Miss.  467; 
Sinimerman  v.  State,  16  Neb.  615;  Reuck  i-.  ]\IcGregor,  32 
N.  J.  70;  Farnam  v.  Feeley,  56  N.  Y.  451;  People  v. 
Hochstim,  36  Misc.  Rep.  (N.  Y.)  562;  State  v.  Morgan, 
22  Utah,  162;  McCarthy  v.  De  Armitt,  99  Pa.  St.  63;  Burch 
V.  Franklin,  7  Ohio  N.  P.  155;  Neal  v.  Joyner,  89  X.  C. 
287  ;  U.  S.  V.  Boyd,  45  Fed.  Rep.  (U.  S.)  851.  "  Any  one 
may  arrest  a  thief  without  a  warrant."  Wrexfurd  v.  Sniitli, 
2  Root  (Conn.),  171. 

8  Holley  V.  Mix,  supra  cit. ;  Habersham  v.  State,  56  Ga.  61  ; 
Wilson  y.  State,  11  Lea  (Tenn.),  310;  Brockwayr.  Crawford, 
48  N.  C.  433  ;  Farnam  v.  Feeley,  56  N.  Y.  451  :  McKenzie 
V.  Gibson,  8  Up.  Can.  Q.  B.  100. 

*  Salisbury  v.  Com.,   79  Ky.  425. 


70  THE  LAW   OF   AEREST 

is  a  felon,   he  may  command  the  assistance  of  a 
bystander.  ^ 

§  114.  Hue  and  Cry.  —  Under  a  "  hue  and  cry," 
however,  a  private  person  may  make  an  arrest,  even 
though  it  should  subsequently  be  shown  that  no 
felony  had  been  committed. 

What  is  a  Felony? 

§  115.  Definition.  —  In  English  common  law  a 
felony  comprised  the  commission  of  any  species  of 
crime  which  occasioned  the  total  forfeiture  of  land 
and  goods.  ^ 

But  this  definition  does  not  apply  in  the  United 
States,  because  the  Constitution  of  the  United 
States,  Article  I,  Section  12,  provides  that  "  no  con- 
viction shall  work  corruption  of  blood,  or  forfeiture 
of  estate. "  Therefore  an  accurate  definition  of  a 
felony  can  be  found  only  in  the  statutes  of  the 
particular  State  wherein  the  offence  is  committed. 
The  courts  w411  not  constrae  an  offence  to  be  a  felony 
unless  such  construction  is  made  necessary  by  the 
express  words  of  the  statute,  or  by  necessary  im- 
plication,'' for  the  statutes  are  to  be  construed  so  as 
not  to  multiply  felonies.^ 

6  2  Hale's  P.  C.  76. 

«  Ex  parte  Wilson,  114  U.  S.  417,  423,  citing 4  Blackstone's 
Commentaries,  94,  95,  310  ;  Com.  v.  Carey,  12  Cush.  (Mass.) 
246 ;  B.  &  W.  R.  Co.  v.  Dana,  1  Gray  (Mass.),  83. 

"'  Wilson  V.  State,  1  Wis.  163. 

8  Com.  V.  Carey,  12  Cush.  (Mass.)  246;  Com.  v.  Carroll, 
8  Mass.  490 ;  Wilson  v.  State,  supra  cit. 


ARREST   WITHOUT   A   WARRANT  il 

Perhaps  a  fair  statutoiy  definition  of  a  felony  in 
the  United  States  is  as  foUows :  "  A  crime  which 
is  punishable  by  death  or  imprisonment  in  the 
State  prison  is  a  felony.  All  other  crimes  are 
misdemeanors. "  ^ 

§  116.  By  Private  Person  in  Case  of  Misde- 
meanor. —  In  misdemeanors,  the  right  of  a  private 
person  to  arrest  without  a  warrant  is  limited  to 
cases  of  breach  of  the  peace  committed  in  the 
presence  of  the  arresting  party,  ^'^  or  to  prevent 
the  continuation  of  a  breach  of  the  peace  which 
has  temporarily  stopped,  Ijut  which  he  has  good 
and  reasonable  ground  to  believe  will  continue 
but  for  the  arrest.  ^^  Without  a  warrant  he  cannot 
make  an  arrest  to  prevent  tlie  commission  of  an 
afiray  or  breach  of  the  peace  which  has  not  yet 
begun,  but  which  is  simply  apprehensive,  nor  can 
he  arrest  without  a  warrant  one  who  has  com- 
mitted a  breach  of  the  peace  after  the  act  had  been 
completed.  ^^ 

9  Revised  Laws  of  Mass.  c.  215,  §  1. 

^°  People  r.  Morehouse,  G  N.  Y.  Suppl.  763;  Phillips  v. 
Trull,  11  Johns.  (X.  Y.)  486;  Knot  c.  (Jay,  1  Root  (Conn.), 
66;  Price  v.  Seeley,  10  CI.  &  F.  (Eng.  H.  L.)  28;  Forrester 
1-.  Clarke,  3  Up.  Can.  Q.  B.  151;  State  v.  Campbell,  107 
X.  C.  948;  Com.  v.  McXall,  1  Woodw.  (Pa.)  423;  Barclay 
V.  U.  S.,  11  Okla   503. 

^^  Price  V.  Seeley,  supra  cit. ;  Ingle  i'.  Boll,  1  M.  &  W. 
(Eng.  Exch.)  516. 

"  Shanley  v.  Wells,  71  111.  78. 


72  the  law  of  arrest 

What  is  a  Breach  of  the  Peace  ? 

§  117.  Definition.  —  The  public  peace  is  that 
sense  of  security  which  every  person  feels,  and 
which  is  necessary  to  his  comfort,  and  for  which 
government  is  instituted  ;  and  a  breach  of  the  public 
peace  is  the  invasion  of  the  security  and  protection 
which  the  law  affords  every  citizen.  ^^ 

A  breach  of  the  peace  is  a  violation  of  public 
order,  the  offence  of  disturbing  the  public  peace. 
An  act  of  public  indecorum  is  also  a  breach  of  the 
peace,  i* 

§  118.  Inciting  Others  to  break  the  Peace.  — 
Anything  which  tends  to  provoke  or  excite  others 
to  break  the  peace  is  in  itself  a  breach  of  the 
peace.  ^^  So  where  a  striker  meets  a  non-union 
workman  on  the  street,  and  calls  him  "  a  damned 
scab, "  the  language,  tending  to  provoke  a  conflict, 
is  a  breach  of  the  peace.  ^^  So  is  calling  one  "  sheep 
thief,"  and  following  him,  bleating  like  a  sheep. ^^ 
And  to  call  a  man  a  "  damn  fool"  and  a  "  bastard  " 
is  a  breach  of  the  peace.  ^^ 

13  State  V.  Archibald,  59  Vt.  548. 

1*  Bouvier's  Law  Diet.  (Breach  of  Peace)  ;  Galvin  v. 
State,  46  Tenn.  283. 

15  4  Bl.  Com.  150. 

i«  Com.  V.  Redshaw,  12  Pa.  Co.  Ct.  91 ;  Com.  v.  Silvers, 
11  Pa.  Co.  Ct.  481. 

1^  State  V.  Warner,  34  Conn.  276. 

1*  Topeka  v.  Heitman,  47  Kan.  739. 


ARREST    WITHOUT    A    WARRANT  73 

§  119.     No  Defence   that  Words  are   True.  —  The 

essence  of  the  offence  of  breaking  the  peace  being 
the  disturbance  of  the  public  tranquillity,  it  is  no 
defence  that  opprobrious  words,  tending  to  provoke 
violence,  are  true.  ^^ 

§  120.  Doing  LaTvful  Act  in  a  Turbulent  Man- 
ner. —  Where  one  attempts  to  abate  a  public  nui- 
sance, in  such  a  manner  as  to  invite  resistance,  he 
is  guilty  of  a  breach  of  the  peace.  As  where  the 
defendant,  armed  with  a  pitchfork,  hoe,  and  pistol, 
proceeds  to  remove  an  obstruction  in  the  highway, 
knowing  that  the  one  who  placed  the  obstruction 
there  is  guarding  it,  is  guilty  of  a  breach  of  the 
peace.  2*^  Breaking  the  locks  of  doors  in  such  a 
manner  as  to  provoke  a  breach  of  the  peace,  is  a 
breach  of  the  peace  in  itself. '-^^ 

§121.  Violent  Language.  —  Where  the  plaintiff, 
in  a  loud  and  boisterous  manner,  called  the  defend- 
ant, a  police  officer,  a  "  God-damned  son  of  a  bitch," 
and  other  names,  and  threatened  to  kill  the  officer 
if  he  attempted  to  arrest  him,  the  plaintiff  was 
guilty  of  a  breach  of  the  peace. '^ 

If  a  man  stops   before   the  door  of  a  dwelling- 

"  Dyer  v.  State,  99  Ga.  20. 

20  State  V.  White,   18  R.  I.  473 ;  State  v.  Flanagan,  67 
Ind.  140;  Day  r.  Day,  4  Md.  262. 
"^^  Taafe  v.  Kyne,  9  Mo.  App.  1.5. 
2-  Davis  I'.  Burgess,  54  Mich.  514. 


74  THE   LAW    OF   ARREST 

house  or  shop  and  uses  violent  language  toward  the 
inmates,  and  thereby  attracts  a  crowd,  and  will  not 
desist  when  requested,  he  is  guilty  of  a  breach  of 
the  peace.  2^  So  also  if  he  uses  loud  and  violent 
language  in  his  own  dwelling-house,  addressed  to 
inmates  thereof,  if  the  disturbance  is  such  as  to  at- 
tract a  gathering  of  persons  outside  of  his  house, 
this  is  a  breach  of  the  peace.  ^^  And  with  much 
stronger  reason  would  this  amount  to  a  breach  of 
the  peace  if  done  in  a  public  place.  ^ 

§  122.  Discharging  Firearms.  —  The  wanton  dis- 
charge of  a  firearm  in  a  public  street  of  a  city  is  a 
breach  of  the  peace. -^  And  where  the  defendant 
went  to  the  house  of  the  complaining  witness, 
armed  with  a  gun,  during  the  absence  of  the  male 
members  of  the  family,  and  from  the  porch  thereof 
shot  and  killed  two  of  his  dogs,  which  were  lying 
in  the  yard,  and  thereby  terrified  the  females  in  the 
house,  such  action  constitutes  a  breach  of  the  peace 
for  which  an  indictment  will  lie.^" 

§  123.  Disturbing  Public  "Worship.  —  The  disturb- 
ance of  public  worship  is  an  act  tending  to  destroy 

23  Cohen  o.  Huskisson,  2  M.  &  W.  (Eng.  Exch.)  482. 
But  see  Ware  v.  Leveridge,  75  Mich.  488.  Compare  State 
V.  Schuermann,  52  Mo.  105. 

2*  Com.  V.  Foley,  99  Mass.  497. 

25  McCandless  v.  State,  2  S.  W.  Eep.  (Tex.)  811. 

26  People  r.  Bartz,  53  Mich.  493. 

2^  Henderson  v.  Com.,  8  Gratt.  (Va.)  708. 


ARREST   WITHOUT   A    WARRANT  75 

the  public  morals,  and  amounts  to  a  breach  of  the 
peace.  ^^ 

§  124.  Prostitutes.  —  A  prostitute  who,  on  the 
street,  or  while  sitting  at  the  window  of  her  room, 
solicits  men  from  the  streets  for  immoral  purposes, 
is  guilty  of  the  offence.  ^^  But  an  officer  may  not 
arrest  one  reputed  a  common  prostitute  who  has 
committed  no  offence  in  his  presence. ^"^ 

§  125.     Must  be   a  Public    Disturbance.  —  An  act 

cannot  constitute  a  breach  of  the  peace  unless  it  dis- 
turbs the  public,  that  is  to  say,  an  indefinite  num- 
ber of  persons.  Therefore  charging  one  with  being 
a  prostitute  and  keeping  a  house  of  ill  fame,  if  the 
statement  does  not  in  itself  tend  to  disturb  others, 
is  not  a  breach  of  the  peace.  ^^ 

§  126.  Public  Shouting.  —  Shouting  in  the  streets 
of  a  village  between  nine  and  ten  o'clock  in  the 
evening,  so  loudly  as  to  be  heard  one  hundred  and 
fifty  feet  distant,  is  a  breach  of  the  peace.  ^     But 

28  U.  S.  r.  Brooks,  4  Cranch  C.  C.  (U.  S  )  427. 

But  a  Sunday-school  is  not  a  place  of  religious  "  worship." 
Hubbard  v.  State,  32  Tex.  Cr.  391.  Contra:  State  i-.  Stuth, 
11  Wash.  423. 

29  Harft  V.  McDonald,  1  City  Ct.  Rep.  (N.  Y.  City)  181; 
People  V.  Pratt,  22  Ilun  (X.  Y.),  300. 

^°  In  re  Sarah  Way,  11  Mich.  299  ;  Pinkerton  v.  Verberg, 
78  Mich.  573.     CoDfra  :  Shafer  v.  Mumma,  17  Md.  331. 

81  State  r.  Schlottman,  52  Mo.  1G4. 

*2  People  V.  Johnson,  86  Mich.  175.  But  see  Mundini  v. 
State,  37  Tex.  Cr.  5 ;  Hardy  v.  Murphy,  1  Esp.  (Eng.  N.  P.) 
294. 


76  THE   LAW   OF   ARREST 

when  the  officer  heard  it  from  another  street,  and 
did  not  see  the  offender,  the  offence  was  not  com- 
mitted in  his  presence,  and  an  arrest  without  a 
warrant  would  not  be  justifiable,  because  the  officer 
had  no  direct  knowledge  that  it  was  he  who  had 
committed  the  offence.  ^^  Driving  a  carriage  through 
the  streets  of  a  populous  city  in  such  a  manner  as 
to  endanger  the  safety  of  the  inhabitants,  was  at 
common  law  an  indictable  offence,  and  is  a  breach 
of  the  peace.  ^* 

§  127.  Swearing.  —  Drunkenness.  —  Profane  swear- 
ing is  a  breach  of  the  peace,^^  and  so  is  public  and 
disorderly  drunkenness.^^ 

§  128.  Use  of  Force,  by  Private  Person.  — A  pri- 
vate person  attempting  to  make  an  arrest  in  case  of 
a  felony  may,  in  those  cases  where  a  private  person 
can  lawfully  arrest,  use  all  force  necessary  to  ac- 
complish the  arrest,  even  to  the  taking  of  life.  So 
also  may  he  kill  to  prevent  the  commission  of  a 
felony,   when  it  cannot  be  otherwise  prevented. 

But  a  private  person  has  no  right  to  arrest  one 

^3  People  V.  Johnson,  86  Mich.  175.  But  see  People  v. 
Bartz,  53  Mich.  493. 

34  U.  S.  V.  Hart,  Pet.  C.  C.  (U.  S.)  390. 

3*  Holcomb  V.  Cornish,  8  Conn.  375 ;  Com.  v.  Linn,  158 
Pa.  St.  22;  State  v.  Chrisp,  85  N.  C.  528. 

36  State  V.  Lafferty,  5  Harr.  (Del.)  491 ;  Bryan  v.  Bates, 
15  111.  87;  State  v.  Freeman,  86  N.  C.  683.  But  see  Com. 
V.  O'Connor,  7  Allen  (Mass.),  583,  holding  it  no  crime  at 
common  law. 


ARREST   WITHOUT   A   WARRANT  7( 

for  whom  he  knows  that  a  warrant  has  been  issued 
for  an  assault  with  intent  to  commit  murder,  un- 
less at  the  time  he  is  assisting  the  officer  who  has 
the  warrant."" 

§  129.     Arrest  by   Officer  -without    a    Warrant.  — • 

An  officer  may  arrest  without  a  warrant,  whenever 
a  private  person  may  do  so;  and  his  authority 
extends  beyond  that  of  a  private  person  in  that 
he  may  arrest  without  a  warrant  one  whom  he  has 
reasonable  ground  ^^  to  suspect  has  committed  a 
felony,  whether  he  acts  upon  his  own  knowledge, 
or  by  facts  communicated  by  others  ;2^  and  if  rea- 
sonable grounds  exist  for  the  suspicion,  he  is  pro- 
tected, although  no  crime  of  any  sort  has  been 
committed. '^'^ 

*^  Kirbie  v.  State,  5  Tex.  App.  60. 

88  Davis  ('.  U.  S.,  16  App.  Cas.  (D.  C.)  442;  Kirk  v. 
Garrett,  84  Md.  383  ;  Williams  v.  State,  44  Ala.  41  ;  Chan- 
dler r.  Rutherford,  101  Fed.  Rep.  (U.  S.)  774;  Ex  parte 
Morrill,  13  Sawy.  (U.  S.)  322;  Tooley's  Case,  2  Ld.  Ray- 
mond (Eng.  K.  B.)  1296;  Filer  v.  Smith,  96  Mich.  347; 
People  V.  Burt,  51  Mich.  199 ;  Fulton  v.  Staats,  41  N.  Y. 
498;  Hedges  v  Chapman,  2  Ring.  (Eng.  C.  P.)  523; 
Hamilton  v.  Calder,  23  X.   Bruns.  373. 

89  Hollcy  V.  .Mix,  3  Wend.  (N.  Y.)  3.^0;  Filer  v.  Smith, 
96  Mich.  347;  Chandler  c.  Rutherford,  101  Fed.  Rep.  (U.S.) 
774  ;  Williams  v.  State,  44  Ala.  41. 

«o  Donovan  v.  Jones,  36  X.  H.  240  ;  Com.  v.  Cheney,  141 
Mass.  102;  Holley  v.  Mix,  3  Wend.  (N.  Y.)  351  ;  State  v. 
Symes,  20  Wash.  484;  Muscoe  v.  Com.,  86  Va.  443;  State 
V.  Taylor,  70  Vt.  1;  Wade  v.  Chaffee,  8  R.  I.  224;  Neal  v. 
Joyner,  89  N.  C.  287;  State  v.  Grant,  76  Mo.  236;  Kirk 


78  THE   LAW   OF   ARREST 

§  130.     Suspicion  must  be  well    Founded.  —  But 

an  officer  has  no  right  to  arrest  on  suspicion  that 
is  not  well  founded,  as  in  case  of  a  mere  suspicion 
not  supported  by  facts,  circumstances,  or  credible 
information.^^  Thus  the  information  given  by  an 
accomplice  is  not  sufficient  to  justify  an  arrest. ''^ 
And  neither  an  officer  nor  a  private  person  in  mak- 
ing an  arrest  upon  suspicion  v/ithout  a  warrant  has 
a  right  to  kill  the  supposed  felon,  either  to  effect 
the  arrest  or  prevent  an  escape,  except  in  self- 
defence.*'^ 

§  131.     Arrest  for  Violation  of  a  City  Ordinance. 

—  An  officer,  may  also  arrest,  without  a  warrant, 
one  who  in  his  presence  commits  a  breach  of  the 
peace ;  **  and  by  authority  of  statute,  city  charter,  or 

V.  Garrett,  84  Md.  383  ;  Wright  v.  Com.,  85  Ky.  123  ;  Bright  y. 
Patton,  5  Mackey  (D.  C),  534 ;  People  v.  Pool,  27  Cal.  572; 
Lewis  V.  State,  3  Head  (Tenn.),  127 ;  State  v.  West,  3  Ohio 
St.  509;  Burns  v.  Erben,  40  N.  Y.  463;  Peoples.  Hochstira, 
36  Misc.  Rep.  (N.  Y.)  562;  McCarthy  v.  De  Armitt,  99  Pa. 
St.  63 ;  Diers  v.  Mallow,  46  Neb.  121  ;  Doering  v.  State,  49 
Ind.  56;  Scott  v.  Eldridge,  154  Mass.  25;  Williams  v.  State, 
44  Ala.  41  ;  Carr  v.  State,  43  Ark.  99  ;  Filer  v.  Smith,  96 
Mich.  347  ;  Hadley  v.  Perks,  L.  R.  1  Q.  B.  444.  But  see 
Marsh  v.  Smith,  49  111.  396 ;  Warner  v.  Grace,  14  Minn.  487 ; 
Cryer  v.  State,  71  Miss.  467. 

«  People  !'.  Burt,  51  Mich.  199;  Williams  v.  State,  44 
Ala.  41. 

42  Wills  V.  Jordan,  20  R.  T.  630. 

43  Brooks  V.  Com.,  61  Pa.  St.  352;  Conraddy  i'.  People,  5 
Park.  Cr.  (N.  Y.),  234.    Contra  :  Shanley  v.  Wells,  71  111.  78. 

"  Com.  V.  Tobin,  108  Mass.  426;  Tracy  v.  Williams,  4 
Conn.  107 ;  Douglass  v.  Barber,  18  R.  1.  459 ;  In  re  Powers, 


ARREST   WITHOUT   A   WARRANT  79 

ordinance,'*^  he  may  arrest  without  a  warrant,  one 
who,  within  his  jurisdiction,  commits  a  misde- 
meanor other  than  a  breach  of  the  peace,  as,  for 
example,  one  who  is  violating  a  city  ordinance, 
without  breaking  the  peace,'*''  although  by  the  com- 
mon law  he  would  have  no  authority  to  do  so.  ^^ 
There  is  a  tendency  on  part  of  the  courts  to  look 
with  disfavor  upon  legislative  enactments  that  au- 
thorize arrests  without  warrants  for  misdemeanors 
not  amounting  to  breaches  of  the  peace, '*^  as  inter- 
fering with  the  constitutional  liberties  of  the 
subject.'*^ 

§  132.  Special  Authority  may  justify  Officer  in 
arresting  for  Misdemeanor  not  committed  in  his  Pres- 
ence.—  When  specially  authorized,  — as  by  the  city 
charter  of  Chicago,  —  an  officer  may  arrest  either 
with  or  without  warrant,  for  a  breach  of  the  peace 
or  threat  to  break  the  peace,  even  though  the  breach 

25  Vt.  2G1;  State  v.  Russell,  1  Iloust.  Cr.  (Del.)  122;  Fleet- 
wood r.  Coin.,  80  Ky.  2;  Boutte  v.  Emnier,  43  La.  980; 
State  V.  Guy,  40  La.  1441  ;  Hayes  v.  aAIitchell,  80  Ala.  183; 
Yeiiemau  v.  Jones,  118  Ind.  41 ;  Beville  v.  State,  16  Tex. 
App.  70. 

^5  ^lain  V.  McCarty,  15  111.  441;  Roderick  v.  Wliitsoii, 
51  Hun  (X.  Y.),  620;  White  v.  Kent,  11  Ohio  St.  550. 

*^  Union  Depot,  etc.  Co.  v.  Smith,  16  Col.  301. 

*''  Tillman  i'.  Beard,  121  Mich.  475;  Judson  v.  Reardon, 
16  Minn.  431. 

"  People  V.  Haug,  37  N.  W.  Rep.  (Mich.)  21. 

*8  Jamison  v.  Gaernett,  10  Husli  (Ky.),  221.  Contra: 
Butolph  V.  Blust,  41  How.  Tr.  (N.  Y.)  481. 


80  THE   LAW    OF    ARREST 

or  threat  was  not  committed  in  the  presence  of  the 
arresting  officer.  "^'^  But  a  mere  threat  to  break  the 
peace  will  not  justify  an  arrest  without  a  warrant, 
unless  the  threat  is  accompanied  by  an  open  act  in 
the  attempted  execution  thereof.  °^ 

§  133.  Presence  is  presumed.  —  When  an  officer 
makes  an  arrest  for  a  breach  of  the  peace,  there  is 
a  prima  facie  presumption  that  he  had  a  warrant,  or 
that  the  offence  was  committed  in  his  presence.  ^^ 

§  134.  What  is  meant  by  "Presence."  —  By  pres- 
ence of  the  officer  is  meant  that  he  must  actually 
see  the  offence  committed ;  being  near  enough  to 
see  is  not  sufficient, ^^  unless  he  hears  it  and  imme- 
diately proceeds  to  the  scene.  ^*  And  if  within  his 
vision,  it  is  immaterial  that  it  was  at  a  distance.  ^^ 

§  135.     Arrest  Outside  of   Officer's  Jurisdiction. — 

An  officer  has  no  authority  to  make  an  arrest  out- 
side of  his  jurisdiction,  even  with  a  warrant,  except 
in  those  cases  in  which  a  private  person  may  act 
without  a  warrant.  Then  an  officer  may  make  the 
arrest,  not  by  virtue  of  his  office,  for  that  is  limited 

60  Main  v.  McCarty,  15  Til.  441. 

61  Quiiin  V.  Heisel,  40  INIich.  576. 

6-  Davis  V.  Pac.  Telephone,  etc.  Co.,  127  Cal.  312. 

63  Russell  V.  State,  37  Tex.  Cr.  314. 

"^  Ramsey  v.  State,  92  Ga.  53 ;  State  v.  IMcAfee,  107 
N.  C.  812  ;  Dilger  v.  Com.,  88  Ky.  550  ;  State  v.  Williams,  36 
S.  C.  493;  Brooks  v.  State,  114  Ga.  6;  Hawkins  v.  Lutton,  95 
Wis.  492. 

65  People  V.  Bartz,  53  Mich.  493. 


ARREST   WITHOUT    A    WARRANT  81 

by  his  jurisdiction,  but  by  that  right  which  the 
law  places  upon  him  as  a  citizen  owing  a  duty  to 
the  State.  56 

§  136.  Effect  of  Submission  to  Illegal  Arrest.  — 
A  person  arrested  by  an  officer  outside  of  his  juris- 
diction who  fails  to  object  at  the  time  of  the  arrest, 
and  voluntarily  accompanies  the  officer,  thereby 
waives  the  illegality  of  the  arrest,  and  cannot  sub- 
sequently object  to  it  as  for  that  reason  illegal. 5" 

§  137.  Arrest  for  Fraud.  —  At  the  request  of  a 
keeper  of  a  restaurant,  a  police  officer  has  no  right 
to  arrest  without  a  warrant,  one  who,  in  taking  a 
meal  at  a  restaurant,  fraudulently  substitutes  the 
check  given  him  for  one  of  less  amount,  which 
latter  he  pays,^^  because  it  was  not  a  criminal  act, 
nor  did  it  tend  immediately  to  create  a  breach  of 
the  peace. 

§  1 38.  Entering  Unfastened  Door  to  arrest  for 
Breach  of  the  Peace.  —  A  constable,  or  other  peace 
officer,  has  a  right,  by  virtue  of  his  office,  without 
a  warrant,  to  enter  through  an  unfastened  door,  a 
house  in  which  there  is  a  noise  amounting  to  a  dis- 
turbance of  the  peace,  and  arrest  any  one  disturbing 
the  peace  there  in  his  presence.  ^^ 

66  2  Hale's  P.  C.  115;  Ressler  v.  Peats,  80  111.  275. 
"  In  re  Popejoy,  26  Col.  32. 
63  Boylestori  r.  Kerr,  2  Daly  (X.  Y.),  220. 
69  Cora.   V.  Tobin,   lOS  Mass.   426;  Ford  r.    Breen,   173 
Mass.  52. 

6 


82  THE   LAW   OF   ARREST 

§  139.  Entering  Fastened  Door  to  arrest  for 
Breach  of  the  Peace.  —  After  announcing  his  au- 
thority, an  officer  may,  upon  demanding  and  being 
refused  admittance,  break  open  a  fastened  door  even 
at  night,  for  the  purpose  of  suppressing  or  prevent- 
ing a  breach  of  the  peace  and  making  an  arrest 
therefor.  ^*^  But  a  private  person  may  not,*^^  except 
to  prevent  a  felony.  ^^ 

§  140.  Entering  to  arrest  for  Peaceable  Drunk- 
enness. —  When  the  statute  authorizes  an  arrest  for 
"  drunkenness  by  the  voluntary  use  of  intoxicating 
liquor,"  the  officer  may  take  the  guilty  party  from 
her  own  room  in  her  own  dwelling-house,  where 
she  is  making  no  disturbance,  and  is  not  exposed  to 
public  view,  but  is  lying  in  a  drunken  stupor;  be- 
cause the  place  where  the  offence  is  committed  is 
not  an  element  to  be  considered  in  determining 
whether  the  accused  person  is  guilty  under  the 
law.^^  And  the  legality  or  illegality  of  the  arrest 
does  not  in  any  way  affect  the  offence  with  which 
she  is  charged,^*  although  if  entrance  to  her  house 
for  the  purpose  of  making  the  arrest  was  obtained 

^0  McLennon  v.  Richardson,  15  Gray  (Mass.),  74;  State 
V.  Lafferty,  5  Harr.  (Del.)  491 ;  State  v.  Stouderiiian,  6  La. 
Ann.  286;  McCuUough  v.  Com.,  67  Pa.  St.  30.;  Rex  v.  Smith, 
6  C.  &  P.  (Eng.  N.  P.)  136. 

61  Rockwell  V.  Murray,  6  Up.  Can.  Q.  B.  412. 

«-  Handcock  v.  Baker,  2  B.  &  P.  (Eng.  C.  P.)  260. 

«3  Com.  r.  Conlin,  184  Mass.  195. 

6^  Ibid. 


ARKEST  WITHOUT   A   WARRANT  83 

illegally,  she  would  have  an  action  against  the  ar- 
resting party  for  the  trespass. 

§  141.  Arrest  without  Warrant  for  Breach  of  the 
Peace  must  be  Immediate.  —  Though  at  common 
law  an  officer  might  without  warrant  arrest  for  a 
breach  of  the  peace  committed  in  his  view,  the  ar- 
rest must  have  been  made  at  the  time  of,  or  within 
a  reasonable  time  after,  the  commission  of  the 
offence, ^^  —  that  is,  the  officer  must  immediately 
set  about  the  arrest,  and  follow  up  the  effort  until 
the  arrest  is  made.  Tliere  must  he  a  continued 
pursuit  and  no  cessation  of  acts  tending  toward  the 
arrest  from  the  time  of  the  commission  of  the 
offence  until  the  apprehension  of  the  offender.^ 
Any  delay  for  purposes  foreign  to  the  arrest  will 
make  the  officer  a  trespasser. 

Where  the  officer  saw  the  defendant  committing 
a  misdemeanor  in  the  street,  and  went  for  another 
officer,  returning  in  half  an  hour,  when  he  arrested 
the  defendant,  he  was  held  to  be  justified.''"  But 
a  delay  of  two  hours  has  been  held  unjustifiable.^^ 

§  142.  Stale  Offence  Less  than  Felony  requires 
a  "Warrant.  —  In  all  cases  not  felonies,  or  likely  to 
result  in  one,  where  the  offence  is  not  committed 

«5  Wahl  V.  Walton,  30  Minn.  506. 

es  Ibid. 

"  Butofph  V.  Blust,  5  Lans.  (X.  Y.)  84. 

«8  Reg.  r.  Walker,  G  Cox  C.  C.  (Ktig.)  371  ;  see  also 
Joyce  V.  Parkliurst,  150  ]Mass.  243;  Com.  v.  lluggles,  6 
Allen  (Mass.),  588. 


84  THE  LAW  OP   ARREST 

in  the  officer's  view,  or  the  act  done  or  threat  made 
is  not  fresh,  a  constable  or  policeman  has  no  au- 
thority to  make  an  arrest  without  a  warrant.  ^"^  So 
where  an  officer  arrests  a  person,  under  a  city  ordi- 
nance, as  a  vagrant,  not  having  a  visible  means  of 
support,  the  offence,  if  there  was  one,  being  a  mis- 
demeanor not  committed  in  his  presence,  he  is 
liable  in  trespass."*^ 

§  143.  Arrest  of  Person  Rightfully  standing  near 
Sidewalk.  —  Except  on  charge  of  felony  an  officer 
has  no  right  to  arrest  without  a  warrant,  one  whom 
he  finds  peaceably  standing  in  front  of  his  place 
of  residence,  between  the  sidewalk  and  building, 
who  is  not  creating  a  disturbance."^ 

§  144.  Pursuit  of  Felon.  —  In  case  of  a  dangerous 
wounding,  whereby  a  felony  is -likely  to  ensue,  an 
officer  may,  upon  probable  suspicion,  without  a  war- 
rant, arrest  the  party  causing  the  wound,  and  for 
that  purpose  is  authorized  to  break  doors,  or  even 
kill  the  felon,  if  he  cannot  otherwise  be  taken.  "^ 

§  145.     Duty  of  Private  Person  to  arrest  a  Felon. 

—  Any  private  person,  and  with  much  stronger  rea- 
son any  officer,  that  is  present  when  any  felony  is 
committed  is  bound  by  the  law  to  arrest  the  felon, 
on  pain   of  fine   and    imprisonment   if   he  escapes 

69  Shanley  v.  Wells,  71  111.  78. 
"">  Ibid. 

"  Com.  V.  Ridgeway,  2  Pa.  Dist.  59 . 
"!'  2  Hale's  P.  C.  88 ;  Shanley  v.  Wells,  supra  cit. ;  4  Bl. 
Com.  292. 


ARREST  "WITHOUT   A    WARRANT  8o 

through  the  negligence  of  the  standers-by. '^  And 
they  may  justify  breaking  open  the  doors  upon 
following  such  felon ;  and  if  they  kill  him,  pro- 
vided he  cannot  otherwise  be  taken,  it  is  justifi- 
able;''' though  if  they  are  killed  in  endeavoring  to 
make  such  arrest,  it  is  murder.  '^ 

§  146.  Arrest  under  a  General  Authority.  —  A 
police  officer  has  the  right  to  arrest,  without  a 
warrant,  under  the  general  power  conferred  upon 
the  police  force  to  prevent  crime  and  arrest  offenders, 
a  person  found  violating  the  sanitary  ordinances  of 
a  city."^ 

Under  a  statute  which  authorizes  marshals  to 
"  arrest  and  detain  any  person  found  violating  any 
law,"  a  marshal  of  a  municipal  corporation  is  au- 
thorized to  arrest  without  warrant  a  person  found 
carrying  concealed  weapons  contrary  to  law,  although 
he  has  no  previous  personal  knowledge  of  the  fact, 
if  he  acts  bona  fide,  and  upon  such  information  as 
induces  an  honest  belief  that  the  person  arrested  is 
in  the  act  of  violating  the  law.  "^ 

'8  2  Hawkin's  P.  C.  74;  4  Bl.  Com.  293;  Long  v.  State, 
12  Ga.  293. 

T*  4  Bl.  Com.  292  ;  Foster  (Eng.),  271 ;  U.  S.  v.  Clark,  31 
Fed.  Rep.  (U.  S.)  710;  Thomas  v.  Kinkead,  55  Ark.  502; 
Conraddy  v.  People,  5  Park.  Cr.  (N.  Y.)  234  ;  Reneau  r. 
State,  2  Lea  (Tenn.),  720;  Brown  v.  "Weaver,  70  :\Iiss.  7; 
Head  v.  Martin,  85  Ky.  480 ;  State  r.  Sigman,  lOG  N.  C.  728. 

"  2  Hale's  P.  C.  77. 

■fs  Mitchell  i-.  Lemon,  34  Md.  17G. 

■7  Ballard  v.  State,  43  Ohio  St.  340. 


86  THE   LAW   OF   ARREST 

§  147.     Arrest    of    Deserters  from    United    States 

Army.  —  The  rule  of  the  common  law,  that  an  offi- 
cer or  private  person  may  arrest  a  felon  without  a 
warrant,  has  never  been  extended  to  the  case  of  an 
offender  against  the  military  law,  punishable  ex- 
clusively by  court-martial.  Therefore  an  officer  or 
a  private  person,  without  order  or  direction  of  a 
military  officer,  has  no  right  to  arrest  or  detain  a 
deserter  from  the  army  of  the  United  States.'^  Nor 
can  a  military  officer  lawfully  break  into  a  dwell- 
ing-house for  the  purpose  of  capturing  a  deserter.'^ 

§  148.  Arrest  by  a  Bail.  —  A  bail  may  arrest 
his  principal  at  any  time  and  anywhere,  even  in 
another  State,  using  no  violence  unless  there  is  re- 
sistance. And  he  may  delegate  the  power  to  an- 
other in  writing  to  do  it  for  him.  But  the  party 
to  whom  the  power  is  delegated  cannot  delegate 
the  power  to  another,  although  he  may  call  in 
others  to  assist  him  in  making  the  arrest.  ^*^ 

A  bail,  or  one  authorized  by  him,  after  due  notice, 
demand  of  admittance,  and  refusal,  may  forcibly 
enter  a  dwelling-house  to  effect  the  arrest  of  the 
principal.  ^^ 

78  Kurtz  V.  Moffitt,  115  U.  S.  487. 

"  Clay  V.  U.  S.,  Dev.  Ct.  CI.  (U.  S.)  25. 

80  State  V.  Mahon,  3  Harr.  (Del.)  568;  Taylor  v.  Taintor, 
16  Wall.  (U.  S.)  366;  In  re  Von  Der  Ahe,  85  Fed.  Rep. 
(U.  S.)  959. 

81  Read  v.  Case,  4  Conn.  166. 


ARREST  WITHOUT   A    WARRANT  87 

§  149.  Arrest  to  prevent  Crime.  —  With  respect 
to  interference  and  arrests  in  order  to  prevent  the 
commission  of  a  crime,  any  person  may  lay  hold  of 
a  lunatic  about  to  commit  any  mischief  which,  if 
committed  by  a  sane  person,  would  constitute  a 
criminal  offence,^  or  any  other  person  whom  he 
shall  see  on  the  point  of  committing  a  treason  or 
felony,  or  doing  any  act  which  will  manifestly  en- 
danger the  life  or  person  of  another,  and  may  detain 
him  until  it  maybe  reasonably  presumed  that  he  has 
changed  his  purpose.  Thus,  any  one  may  justify 
breaking  and  entering  a  party's  house  and  imprison- 
ing him,  to  prevent  him  from  murdering  his  wife, 
who  cries  out  for  assistance.  ^^ 

Where  one  interferes  to  prevent  others  from  fight- 
ing, he  should  first  notify  them  of  his  intention  to 
prevent  a  breach  of  the  peace.  ^ 

§  150.  Hue  and  Cry.  —  It  was  formerly  the  law 
in  England,  by  Statute  13  Edward  I,  Chapter  3, 
that  every  hundred  (a  division  of  a  county)  ^^  was 

82  Lott  V.  Sweet,  33  Mich.  308;  Paetz  v.  Dain,  Wils. 
(rnd.)  148. 

83  Handcock  r.  Baker,  2  B.  &  P.  (Eng.  C.  P.)  260;  Selw. 
3d  ed.  830;  Bacon's  Abr.  Trespass,  1)  3. 

s4  1  East  P.  C.  304;  Bacon's  Abr.  Trespass,  D  3;  2 
Pvolles  Abr.  559. 

85  Regan  v.  N.  Y.  etc.  R  R.  Co.,  CO  Conn.  124.  In  Del- 
aware the  sub-divisions  of  a  county  are  called  "hundreds." 
They  correspond  to  "  towns,"  in  New  England ;  "  townships," 
in  New  Jersey,  and  "parishes"  in  Louisiana. 


88  THE   LAW   OF   ARREST 

bound  to  answer  for  all  robberies  therein  committed, 
unless  they  took  the  felon.  ^^  For  that  reason  it  was 
common  to  make  fresh  pursuit,  with  hue  and  cry,  by 
both  horsemen  and  footmen,*^'  of  one  who  had  com- 
mitted a  felony.  These  acts  are  now  repealed,  and 
an  arrest  by  hue  and  cry  is  seldom  known.  Of  the 
same  effect,  however,  in  later  usage,  is  a  written 
proclamation  issued  on  the  escape  of  a  felon  from 
prison^  requiring  all  persons  to  aid  in  retaking 
him. 

8«  Grosvenor  v.  Inhab.  etc.  of  St.  Augustine,  12  East,  244. 
*^  Made  imperative  by  Stat.  27  Eliz.  c.  13. 


BREAKING   DOORS  TO   MAKE   AN   ARREST  89 


CHAPTER   YII 
BREAKING  DOORS   TO  MAKE   AX   ARREST 

§  151.     Man's    Habitation  is    Sacred.  —  The    law 

regards  a  man's  house  as  his  castle,  his  place  of 
refuge,  his  sanctuary,  and  is  predisposed  to  protect 
it  against  forcible  invasion  and  disturbance.  This 
protection  is  afforded,  not  only  because  of  man's 
natural  right  of  undisturbed  habitation,  which  nature 
has  ever  impelled  him  to  maintain,  even  when  in 
a  savage  state,  but  also  because  of  the  terror  which 
usually  results  from  an  invasion  of  this  right,  and 
the  possibility  of  such  invasion  causing  a  breach  of 
the  peace  through  being  met  with  resistance. 

§  152.  Breaking  into  Dw^elling-house  to  serve 
Process.  —  As  a  result  of  this  tender  regard  of  the 
law  for  the  habitation  of  man,  it  is  well  settled  that 
an  outer  door  or  window  of  a  dwelling-house  cannot 
be  broken  to  execute  civil  process.  In  the  execution 
of  criminal  process,  however,  the  law,  with  due  re- 
gard for  the  well-settled  principle  "  individual  rights 
yield  to  public  necessity, "  allows  the  habitation  of 
man  to  be  entered  forcibly  under  certain  conditions.  ^ 

1  Com.  V.  Reynolds,  120  Mass.  100;  Shanley  i-.  Wells,  71 
m.  78;  Cahill  v.  People,  106  111.  621;  State  v.  Smith,  1 
N.  II.  346. 


90  THE   LAW   OF   ARREST 

§  153.  Notification,  Demand,  and  Refusal  are 
Necessary.  —  To  serve  a  criminal  process  a  dwell- 
ing-house may  be  forcibly  entered  by  an  officer  after 
a  proper  notification  of  the  purpose  of  the  entry, 
and  a  demand  upon  the  inmates  to  open  the  house, 
and  a  refusal  by  them  to  do  so.^  And  even  if  it 
appeared  that  the  defendant  was  not  in  the  house 
at  the  time  such  arrest  was  attempted  to  be  made, 
yet  the  breaking  and  entering  the  house  for  the 
purpose  of  arresting  him  would  be  justified,  if  the 
officer  acted  in  good  faith,  under  reasonable  belief 
that  the  party  was  there, ^  and  after  proper  notice 
broke  and  entered  the  house,  doing  no  unnecessary 
violence  or  damage ;  "*  and  such  is  the  law  even 
though  the  offence  for  which  the  warrant  was  issued 
is  but  a  misdemeanor.^ 

§  154.  Name  of  Party  sought  need  not  be  given 
unless  requested.  —  It    is  not   necessary  to   notify 

2  Barnard  v.  Bartlett,  10  Cash.  (:Mass.)  501;  McLennon 
V.  Richardson,  15  Gray  (Mass.),  74;  State  v.  Oliver,  2  Houst. 
(Del.)  585;  Semayne's  Case,  5  Coke  (Eng.  K.  B.),  91b; 
Lannock  v.  Brown,  2  B.  &  Aid.  (Eng.  K.  B.)  592;  Read  v. 
Case,  4  Conn.  166. 

3  Com.  V.  Irwin,  1  Allen  (Mass.),  587. 

^  Com.  V.  Reynolds,  120  Mass.  190;  Com.  v.  Irwin,  supra 
cit. 

5  Com.  V.  Reynolds,  supra  cit. ;  State  v.  Shaw,  1  Root 
(Conn.),  134;  State  v.  Mooring,  115  N.  C.  709;  State  v. 
Oliver,  2  Houst.  (Del.)  585;  U.  S.  v.  Faw,  1  Cranch 
(U.  S.  C.  C),  487.  Contra:  Com.  v.  County  Prison,  5  Pa. 
Dist.  635. 


BREAKING   DOORS   TO   MAKE   AN   ARREST  91 

the  occupier  of  the  house  who  the  person  sought  to 
be  arrested  is,  if  no  inquiry  is  made  in  relation 
thereto,  even  if  the  person  sought  to  be  arrested 
is  not  actually  in  the  house,  it  being  sufficient  for 
the  occupier  to  know  that  an  officer,  provided  with 
a  warrant  against  an  alleged  offender,  who  believes 
that  he  is  within  his  house,  is  seeking  to  arrest 
him  there.  ^ 

§  155.  Private  Person's  Right  to  break  Doors.  — 
Any  private  person  who  is  present  when  any  felony 
is  committed,  is  bound  to  arrest  the  felon,  and  may 
break  open  doors  when  following  him  in  fresh  pur- 
suit upon  reliable  information."  But  a  private  per- 
son is  not  justified  in  breaking  doors  to  arrest  a 
person  upon  a  groundless  suspicion,  no  matter  how 
reasonable  or  well  founded  his  suspicion  may  be.  ^ 

§  lofi.  To  -whoin  the  Protection  of  the  Dwelling- 
house  is  extended.  —  A  dwelling-house  cannot  be 
forced  by  an  officer  in  the  execution  of  civil  process 
against  the  occupier  or  any  of  his  family  who  have 
their  domicil  or  ordinary  residence  there;  and  this 
immunity  from  arrest  extends  not  only  to  the  occu- 
pant, his  wife  and  children,  but  to  domestic  ser- 
vants, and  permanent  boarders  and  lodgers  as  well, 
but    not   to   strangers   or  visitors.^     So    that   if   a 

«  Com.  V.  Reynolds,  120  Mass.  190. 
'  Brooks  V.  Cora.,  61  Pa.  St.  3.32. 

8  Ibid. 

9  Oystead  v.  Shed,  13  Mass.  520. 


92  THE   LAW   OP   ARREST 

stranger  whose  ordinary  residence  is  elsewhere, 
upon  a  pursuit,  take  refuge  in  the  house  of  another, 
the  house  is  not  his  castle ;  and  the  officer  may 
break  open  the  doors  or  windows  in  order  to  exe- 
cute his  process. 

If  the  occupant  should  refuse  admission  to  the 
officer  after  his  purpose  and  authority  were  made 
known,  the  law  would  consider  him  as  conspiring 
with  the  party  pursued  to  screen  him  from  arrest, 
and  would  not  allow  him  to  make  his  house  a  place 
of  refuge.  '^^ 

§  157.  Breaking  into  Dwelling-house  to  prevent 
Escape.  —  It  would  be  different,  however,  if  the  oc- 
cupier of  a  house  was  arrested  outside  of  his  house, 
and  then  fled  to  his  house  for  protection.  In  such 
case  the  officer  would  have  a  clear  right  to  pursue 
and  break  into  the  house,  for  he  would  not  then 
be  effecting  an  arrest,  but  would  be  preventing  an 
escape.  But  the  breaking  will  not  be  justified 
unless  the  arrest  outside  the  house  was  absolutely 
complete.  ^^ 

§  158.  Arrest  within  House  by  OfBcer  Outside. 
—  Where  one  is  arrested  by  the  officer  touching 
him  for  the  purpose  of  arresting  him,  through  a 
broken  window,^'''  the  arrest  having  been  consum- 
mated by  the  touching  of  the  defendant,  the  officer 

10  Oystead  v.  Shed,  13  Mass.  520. 

11  See  Chapter  IV.  as  to  acts  completing  arrest. 

12  Sandow  t;.  Jervis,  E.  B.  &  E.  (Eng.  Q.  B.)  935,  942. 


BREAKING    DOORS   TO    MAKE   AN    ARREST  93 

may  break  an  outer  door,  not  to  execute  the  civil 
process,  for  that  was  executed  by  the  act  of  arrest, 
but  to  remove  his  prisoner. 

§  159,  Unannounced  Breaking  to  make  Original 
Arrest  not  justified.  —  It  was  decided  as  early  as 
1605,^^  that  the  householder  must  be  requested  to 
open  the  door  before  the  officer  can  break  his  way 
in  ;  and  such  is  still  the  law.^^  In  fact  it  is  neces- 
sary (1)  that  the  officer  give  notice  of  his  purpose 
and  his  authority,  (2)  demand  admission,  aud  (3) 
be  refused  admission,  before  he  can  break  a  door  or 
window  of  a  dwelling-house  to  make  an  arrest  on 
either  a  civil  or  a  criminal  process. 

§  160.  Breaking  may  be  unannounced  if  Arrest  is 
following  Escape.  —  But  if  a  person  who  has  been 
arrested  escapes,  and  takes  refuge  in  the  house  of  an- 
other, the  officer  may  break  into  such  other  person's 
house  to  retake  him  ;  and  if  the  pursuit  is  fresh,  so 
that  the  occupant  is  consequently  aware  of  the  ob- 
ject of  the  officer,  no  notice  of  purpose,  demand  of 
admission,  and  refusal  to  admit  is  necessary  to 
justify  the  officer  in  breaking  the  outer  door.  ^^ 

§  161.  OfiBcer  may  re-enter  Forcibly  if  Neces- 
sary. —  If  an  officer  has  once  been  lawfully  in  the 

12  Semayne  v.  Gresham,  5  Coke  (Eng.  K.  B.),  91. 
"  Barnard  v.  Bartlett,  10   Cush.  (Mass.)   501  ;  Com.  v. 
Reynolds,  120  Mass.  190. 

15  Alien  V.  Martin,  10  Wend.  (X.  Y.)  oOO. 


94  THE   LAW    OF    ARREST 

house  in  making  an  arrest  on  civil  process,  he  may 
re-enter,  using  as  much  force  as  may  be  necessary.  ^^ 
So  where  an  officer  obtained  a  peaceable  entrance 
through  an  outer  door,  and  before  he  could  make  an 
arrest  was  forcibly  ejected  from  the  house,  and  the 
door  fastened  against  him,  he  was  justified  in  forc- 
ing open  the  door,  without  a  demand  of  re-admit- 
tance, and  making  the  arrest. -^^ 

§  162.  Inner  Doors  may  be  broken  on  any  Process. 
—  While  the  law  prohibits  the  breaking  of  the  outer 
door  of  a  dwelling-house  to  execute  civil  process,  it 
does  not  extend  the  protection  to  the  inner  doors,  ^^ 
except  where  an  inner  door  is  the  entrance  to  a  dis- 
tinct apartment,  ^^  or  to  the  outer  doors  or  windows 
of  other  buildings  not  the  dwelling  of  the  debtor. ^o 

§  163.  When  Usual  Inner  Door  is  a  Legal  Outer 
Door.  —  Where  a  house  is  let  to  lodgers,  the  owner 
retaining  one  room  thereof  for  himself,  an  officer 
may  break  open  an  inner  door  which  leads  to  the 
owner's  room,  for  the  purpose  of  arresting  him.^^ 

But  if  the  whole  house  be  let  in  lodgings,  as  each 
lodging  is  then  considered  a  dwelling-house,  in 
which  burglary  may  be  stated  to  have  been  com- 

i«  Genner  v.  Sparks,  6  Mod.   (Eng.  K.  B.   &c.)    173. 
"  Aga  Kurhboolie   Mahomed   v.  Reg,,  3  Moore,  P.  C. 
(Eng.)  164. 

18  Hubbard  v.  Mace,  17  Johns.  (N.  Y.)  127. 

19  Stedman  v.  Crane,  11  Mete.  (Mass.)  295. 

20  Haggerty  v.  Wilber,  16  Jolins.  (N.  Y.)  287. 

21  Williams  v.  Spencer,  5  Johns.  (N.  Y.)  352. 


BREAKING   DOORS   TO    MAKE   AN    ARREST  95 

mitted,  it  has  been  supposed  that  the  door  of  each 
apartment  would  be  considered  an  outer  door  which 
could  not  be  legally  broken  open  to  execute  a  civil 
arrest.  "^ 

What  is  a  Dwelling-House  ? 

§  164.  Definition.  —  A  dwelling-house  is  a  build- 
ing inhabited  by  man.  A  house  usually  occupied 
by  the  person  there  residing  and  his  family.  ^^ 

§  165.  Use  determines  Character.  —  The  use  to 
which  a  house  is  put,  at  the  time  of  the  offence,  de- 
termines its  character.-'*  A  barn  may  be  converted 
into  a  dwelling-house,  or  a  dwelling-house  into  a 
barn,  by  a  change  of  its  uses.^  A  cabin  in  the 
woods,  built  as  a  permanent  structure  for  wood- 
choppers  to  occupy,  is  a  dwelling-house  if  in  actual 
use  as  a  place  of  abode.  ^^ 

A  house  merely  designed  as  a  dwelling-house, 
but  not  occupied  for  that  purpose,  is  not  a  dwelling- 
house.  "^"^ 

§  166.  Use  of  Portion  as  Dwelling.  —  It  is  not 
necessary  that  the  entire  ])uilding  be  used  as  a 
dwelling-place,  to  make  the  entire  building  a  dwell- 

22  Oystead  v.  Shed,  13  Mass.  519. 

28  Bouvier's  Law  Diet.  (Dwelling-house). 

2*  State  V.  Williams,  40  W.  Va.  2GS ;  Davis  v.  State,  38 

Ohio  St.  506. 

25  Davis  V.  State,  supra  cit. 

26  State  V.  Weber,  15G  Mo.  257. 

27  State  i\  Warren,  33  Me.  30. 


96  THE   LAW   OF   ARREST 

ing-liouse.  If  part  of  a  building  is  used  as  a  place 
of  abode,  every  part  of  the  building  to  which  there 
is  an  internal  communication  from  the  part  used  as 
a  dwelling  is  part  of  the  dwelling-house.  Thus  the 
loft  of  a  coach-house  and  stable  which  is  used  as 
the  dwelling  of  the  coachman  is  his  dwelling-house, 
although  the  principal  use  of  the  building  is  that 
of  a  coach-house  and  stable. ^^ 

§  167.  May  be  Several  Dwellings  in  same  Build- 
ing. —  Where  a  building  is  leased  to  different  per- 
sons in  distinct  apartments,  each  apartment  is  the 
dwelling-house  of  the  lessee. '-^^ 

§  168.     Public  Building  may  be   a  D-vsrelling.  —  A 

suite  of  rooms  in  a  college  is  a  dwelling-house.^*' 
So  is  a  public  jail,^^  or  an  infirmary. ^^  And  a 
building  thirty-six  feet  distant  from  the  main 
dwelling,  in  which  the  servants  sleep,  is  a  part  of 
the  dwelling-house.^^ 

§  169.  Combined  Residence  and  Place  of  Busi- 
ness. —  Where  the  front  of  a  building  is  occupied 
by  the  owner  as  a  shoe-shop,  and  is  connected 
with  the  rear  and  overhead  portion,  which  is  used 
as  a  dwelling,  the  building  is  a  dwelling-house.^* 

28  Rex  V.  Turner,  1  Leach  (Eng.  C.  C),  305. 

29  Stedman  v.  Crane,  11  IMetc.  (Mass.)  295. 
so  Barnes  v.  Peters,  L.  R.  4  C.  P.  539. 

81  People  V.  Cowteral,  IS  Johns.  (N.  Y.)  115. 

82  Davis  V.  State,  38  Ohio  St.  506. 

83  Pond  V.  People,  8  Mich.  150. 

84  People  V.  Dupree,  98  Mich.  26. 


BREAKING   DOORS  TO  MAKE   AN   ARREST  97 

And  where  a  woman  occupied  as  her  dwelling  a 
building  containing  a  single  room,  in  which  she 
also  carried  on  her  trade  as  a  milliner,  and  kept 
therein  a  stock  of  millinery  goods,  it  was  held  that 
the  use  of  the  room  as  a  place  of  business  did  not 
change  its  character  as  a  dwelling,  and  that  break- 
ing the  door  in  the  execution  of  civil  process  was 
illegal. '^^ 

§  170.  Use  of  House  must  be  Primarily  and  Habit- 
ually for  Sleeping  Purposes.  —  The  house  must  be 
used  as  the  usual  and  habitual  place  for  sleeping 
purposes,  by  the  owner  or  some  member  of  his 
family,  or  his  servants,  in  order  to  make  it  a 
dwelling-house. 

A  storehouse  of  the  owner,  who  resides  nearby, 
and  in  which  he  occasionally  slept,  is  not  a  dwell- 
ing-house.^^ But  if  a  part  of  a  storehouse,  commu- 
nicating with  the  part  used  for  store  purposes,  is 
slept  in  lialitually  by  the  owner  or  some  member  of 
his  family,  although  he  sleeps  there  for  the  purpose 
of  protecting  the  premises,  it  is  his  dwelling-house. 
If,  however,  the  person  who  sleeps  there  is  not  the 
owner,  or  one  of  his  family,  or  a  serv'ant,  or  clerk, 
but  is  employed  to  sleep  there  solely  for  the  pur- 
pose of  protecting  the  premises,  the  store  is  not  a 
dwelling-house.^'^ 

85  Welsh  r.  Wilson,  34  Minn.  92. 

86  State  V.  Jenkins,  o  Jones  (X.  C),  430. 

8T  State  V.  Potts,  75  N.  C.  129;  State  v.  Williams,  90  N. 
C.  724. 

7 


98  THE   LAW    OF   ARREST 

§  171.  Effect  of  Absence.  —  A  liouse  which  the 
owner  visits  once  or  twice  a  year,  and  at  each  visit 
sleeps  there  for  about  a  week,  at  other  times  the 
house  being  unoccupied,  is  not  a  dwelling-house 
except  when  so  occupied.  ^^  But  a  temporary  ab- 
sence with  the  intention  of  returning  does  not  make 
a  building  lose  its  character  as  a  dwelling-house.^^ 

What  is  a  Breaking? 

§  172.  Same  in  Serving  Process  as  in  Burglary. 
—  What  would  be  a  "  breaking  "  of  the  outer  door 
in  burglary  is  equally  a  breaking  by  the  sheriff 
when  he  enters  to  make  a  levy,*^  or  when  he,  or  any 
other  officer,  comes  to  serve  any  legal  process. 

§  173.  Does  not  Necessarily  involve  Injury  of 
Material.  —  "  Breaking  "  does  not  mean  that  any  part 
of  the  material  used  in  the  construction  of  a  door, 
or  window,  or  any  other  part  of  the  house  must  be 
actually  broken  or  even  injured.  If  anything  mate- 
rial which  constitutes  a  part  of  the  dwelling-house, 
and  is  relied  on  as  a  security  against  intrusion,  be 
broken,  removed,  or  put  aside,  there  is  a  breaking.*^ 

§  174.  Taking  Advantage  of  Negligence  of  Oc- 
cupant. —  But  if  the  occupant  of  a  house  is  negli- 

38  Scott  V.  State,  62  Miss.  781. 

39  Harrison  v.  State,  74  Ga.  801 ;  Schwabacher  v.  People, 
165  111.  618;  Ex  parte  Vincent,  26  Ala.  145. 

40  Curtis  V.  Hubbard,  1  Hill  (N.  Y.).  3.38. 

*i  State  V.  Boon,  35  N.  C.  244  ;  Walker  v.  State,  52  Ala. 
376.  " 


BREAKING   DOORS   TO   MAKE   AN   ARREST  99 

gent,  and  does  not  avail  himself  of  the  usual 
methods  of  protecting  his  dwelling,  then  one  who 
takes  advantage  of  his  negligence  is  not  guilty  of 
breaking.  *2 

§  175.  Breaking  Doors.  —  Opening  a  door  by 
lifting  the  latch, '^^  or  by  turning  the  knob  of  a 
closed  door  is,  in  law,  a  complete  breaking.**  Or 
opening  a  door  by  unhooking  a  chain  which  is 
hooked  over  a  nail,*^  or  to  push  open  a  door  which 
is  entirely  closed,  but  which  is  neither  locked  nor 
latched,  is  a  sufficient  breaking.*^  So  where  a  door 
was  made  in  two  sections,  upper  and  lower,  the 
upper  section  being  open,  it  is  a  breaking  to  un- 
hook the  lower  door;  and  the  fact  that  the  upper 
door  was  open,  so  that  the  party  might  have  entered 
without  unfastening  the  lower  door,  makes  no  legal 
difference  in  the  entry.*"  And  where  a  screen  door, 
entirely  closed,  was  pushed  open,  although  the  per- 
manent door  was  not  closed,  it  was  held  a  breaking.*^ 

42  State  V.  Henry,  9  Ired.  (N.  C.)  463 ;  Rex  r.  Spriggs, 
1  Mood.  &  Rob.  (Eng.  N.  P.)  357. 

^8  State  r.  Groning,  33  Kan.  18;  State  r.  O'Brien,  81 
Iowa,  93;  Hedrick  v.  State,  40  Tex.  Cr.  532  ;  State  r.  Boon, 
35  X.  C.  244;  Tickner  v.  People,  6  Hun  (N.  Y.),  657;  State 
V.  Hecox,  83  Mo.  531;  Bass  v.  State,  69  Tenn.  444  ;  McCourt 
V.  People,  (34  N.  Y.  583. 

"  Walker  v.  State,  52  Ala.  376. 

«  State  V.  Hecox,  83  Mo.  531. 

*®  State  V.  Reid,  20  Iowa,  413 ;  State  v.  Groning,  33  Kan. 
18. 

*''  Ferguson  v.  State,  52  Neb.  432. 

*^  State  V.  Conners,  95  Iowa,  485. 


100  THE   LAW   OP   ARREST 

The  removing  of  a  post  leaning  against  a  door  to 
keep  it  closed  also  constitutes  a  breaking.*^  And 
the  outer  door  being  shut,  is  equally  a  protection 
whether  the  owner  or  possessor  be  within  at  the 
time  or  not.  ^"^  Raising  a  trap  door  which  is  held 
in  place  by  its  own  weight  is  also  a  breaking.  ^^ 

§  176.  Breaking  Windows,  —  And  it  is  a  break- 
ing within  the  meaning  of  the  law  even  to  push 
open  a  swinging  transom  window,  which  is  not 
fastened,  but  is  kept  in  place  merely  by  its  own 
weight, ^^  or  raising  an  unfastened  window, ^'^  or  re- 
moving a  window  screen  that  is  fastened  with 
nails, ^■^  or  any  other  window  covering,  even  if  held 
in  place  by  its  weight  alone. 

§177.  Entering  other  Openings.  —  Entering  by 
means  of  a  chimney  ^^  is  a  breaking,  because  this  is 
an  opening  which  necessarily  exists  in  order  that 
the  building  may  be  occupied  as  a  dwelling-house. 

49  State  V.  Powell,  61  Kan.  81 ;  State  v.  Woods,  137  Mo. 
6;  Matthews  v.  State,  38  S.  W.  (Tex.)  172. 

50  Curtis  V.  Hubbard,  1  Hill  (N.  Y.),  338. 

6^  Harrison  v.  State,  20  Tex.  App.  387;  Carter  v.  State, 
68  Ala.  96. 

5-  Dennis  v.  People,  27  Mich.  151 ;  Timmons  v.  State,  34 
Ohio  St.  426. 

63  State  V.  Boon,  35  N.  C.  244 ;  Frank  v.  State,  39  Miss. 
705;.  Rex  v.  Hyaras,  7  C.  &  P.  (Eng.  N.  P.)  441. 

"  Com.  V.  Stephenson,  8  Pick.  (Mass.)  351 ;  Sims  i'. 
State,  136  Ind.  358. 

65  Rex  V.  Brice,  Russ.  &  Ry.  (Eng.  C.  C)  450;  Walker  v. 
State,  52  Ala.  376. 


BREAKING   DOORS   TO    MAKE   AN   ARREST        101 

But  it  seems  that  it  is  not  a  breaking  to  enter 
through  a  hole  in  the  roof  of  a  house,  left  there  for 
the  purpose  of  giving  light, ^  because  the  owner 
might  have  protected  his  premises  by  covering  the 
opening  with  a  fastened  window ;  or  to  enter  by  a 
door  or  window  which  is  already  partly  opened, 
although  the  opening  may  be  very  slight.^' 

In  all  such  cases  the  negligence  of  the  occupier, 
in  leaving  his  premises  insufficiently  protected,  re- 
duces an  illegal  entrance  to  a  mere  trespass,  without 
attaching  to  it  a  breaking. 

§  178.     Enlarging  Opening  by  Actual   Breaking. — 

But  where  an  opening  is  enlarged  by  an  actual 
breaking  of  material,  or  even  where  a  broken  win- 
dow-pane, still  entirely  in  place,  is  removed  so  as 
to  effect  an  entrance,  or  the  breaking  or  pushing  in 
of  a  part  of  a  pane  of  glass  wdiich  had  been  pre- 
viously cut,  but  the  whole  of  which  still  remained 
in  its  place, ^^  is  a  sufficient  breaking. 

So  where  a  hole  is  dug  under  a  building  made  of 
logs,  which  has  no  floor  except  the  ground,  there  is 
a  breaking.  ^^ 

§  179.  Mere  Protective  Doors  are  not  "Outer" 
Doors.  —  "Where  there  are  two  doors  to  the  cellar- 
way  of  a  dwelling-house,  one  opening  outwardly, 

66  Rex  V.  Spriggs,  1  Mood.  &  Rob.  (Eng.  X.  V.)  357. 
^"^  Com.  V.  Stnipne}-,  105  Mass.  58S. 

68  Reg.  V.  Bird,  9  C.  &  P.  (Eng.  N.  P.)  44. 

69  Pressley  v.  State,  111  Ala.  34. 


102  THE   LAW   OF   ARREST 

and  the  other  opening  into  the  cellar,  the  latter  is 
the  outer  door  of  the  house,  and  if  closed  and 
latched,  the  unlatching  and  entering  constitutes  a 
hreaking.^*'  Upon  like  reasoning  the  storm-door  is 
not  the  outer  door  of  a  house.  ^^ 

§  180.     Removal   of    Iron   Grating  over    Sidewalk. 

—  One  decision  apparently  in  conflict  with  the  last 
cited  case  is,  that  the  removal  of  an  iron  grating 
over  the  sidewalk,  for  the  purpose  of  effecting  an 
entrance  through  a  cellar  window  into  the  building, 
is  a  breaking. ^2  ^ut  in  this  case  it  seems  that  the 
cellar  window  was  left  open  by  the  owner,  who 
apparently  relied  upon  the  grating  to  protect  the 
building  against  intruders,  and  this  allows  the 
cases  to  be  reconciled. 

§  181.  Entrance  by  Means  of  Deception.  —  To 
gain  an  entrance  by  deception,  as  where  the  officer 
announced  that  he  had  a  note  for  the  party  whose 
arrest  was  sought,  ^^  or  that  he  wanted  to  see  some 
other  person  who  was  in  the  house,  and  thereby 
gained  admission, "^^  have  been  held  legal  entrances, 
although  such  entrances  in  the  law  of  burglary  are 
held  breakings.  ^^     And  it  was  held  that  where  the 

60  McCourt  V.  People,  G4  N.  Y.  583. 

ci  Ibid. 

6^  People  V.  Nolan,  22  Mich.  229. 

«3  Rex  r.  Backhouse,  Lofft  (Eng.  K.  B.),  61. 

«  Hitchcock  V.  Holmes,  43  Conn.  528. 

"5  Johnston  v.  Com.,  85  Pa.  St.  54. 


BREAKING  DOORS  TO  MAKE  AN  ARREST    103 

occupant  of  a  house,  decoyed  therefrom  by  the 
stratagem  of  the  trespasser,  left  his  door  unfastened, 
and  fifteen  minutes  later  the  trespasser  entered  the 
unfastened  door,  there  was  no  breaking,  by  reason 
of  the  negligence  of  the  remaining  members  of  the 
family  not  fastening  the  door  during  that  interval. ^^ 
But  if  the  occupant  is  induced  to  open  the  door 
by  threats,  or  if  the  officer  claims  that  he  is  coming 
to  serve  a  different  sort  of  a  process,  and  by  his  false 
statement  procures  an  entrance,  there  would  be  a 
breaking. 

§  182.     Effect   of    Illegal    Breaking  on  the   Arrest. 

—  An  arrest  of  a  person  in  a  civil  action,  by  an 
unlawful  breaking,  not  only  subjects  the  officer  to  a 
civil  action  for  the  trespass,  but  the  arrest  is  alto- 
gether void.  ^"  In  a  criminal  action,  however,  the 
illegality  of  the  arrest  of  one  before  the  court  on  a 
valid  criminal  charge  will  not  be  considered  in  that 

68 


case. 


66  state  I'.  Henry,  0  Ired.  (N.  C.)  463, 

6T  Kerbey  v.  Denbey,  1  M.  &  W.  (Eng.  Exch.)  336. 

68  Com.  V.  Conliii,  isi  Mass.  195. 


104:  THE   LAW   OF   ARREST 


CHAPTER   VIII 
FORCE   IN   THE   ACT   OF   ARREST 

§  183.     Authority    and     Duty    are     Coincident,  — 

The  law  never  clothes  a  person  with  authority  to 
make  an  arrest  without,  at  the  same  time,  placing 
upon  him  the  duty  of  making  it. 

In  the  discharge  of  this  duty,  the  arresting  party 
may  use  all  the  force  that  is  absolutely  necessary 
to  effect  the  arrest,  even  under  some  circumstances 
to  the  point  of  killing ;  but  the  use  of  unnecessary 
force  can  never  be  justified. 

The  law  deprecates  the  necessity  of  killing  a 
human  being  in  the  act  of  making  an  arrest,  and 
will  not  allow  either  the  party  making  the  arrest, 
or  the  party  whose  arrest  is  desired,  in  case  of  a 
wanton  abuse  of  right,  to  shield  himself  behind  a 
technicality  of  law. 

So  that,  while  there  are  cases  holding  that  the 
taking  of  life  by  the  officer,  or  by  the  accused,  or 
by  a  private  party  in  a  case  wherein  he  may  law- 
fully act,  is  justifiable  under  certain  circumstances, 
these  cases  may  not  always  be  safely  relied  upon  to 
protect  the  party  who  does  the  killing. 

This  is  largely  true  by  reason  of  the  different 
views  held  by  the  people  of  different  parts  of  the 


FORCE  IN  THE  ACT  OF  ARREST        105 

country  respecting  the  amount  of  provocation  that 
will  justify  a  homicide,  —  the  killing  of  a  human 
being  by  a  human  being.  And  it  is  always  the 
people  —  the  jury  —  of  the  place  where  the  homicide 
occurs  that  are  to  say  whether  the  killing  is  to  be 
sanctioned  or  punished,  and  whether  the  officer 
acted  on  reasonable  grounds.  ^  Hence,  a  case  de- 
cided in  a  community  where  verbal  or  written 
insults  and  provocations  are  held,  under  certain 
conditions,  to  justify  a  killing,  is  not  a  safe  prece- 
dent for  one  to  rely  on  in  a  community  where  mere 
words,  no  matter  how  strongly  inclined  to  arouse 
man's  passions,  are  held  never  to  justify  a  homi- 
cide. In  fact,  with  the  advancement  of  legal  at- 
tainments, and  general  enlightenment  of  society,  the 
occasions  where  the  taking  of  human  life  may  be 
justified  by  one  enforcing  legal  arrest,  or  resisting 
illegal  arrest,  are  becoming  fewer. 

§  184.  Blackstone's  Rule  not  Reliable. — Black- 
stone  wrote,  about  1769,  that  a  crime  miglit  be  pre- 
vented by  death  if  the  same,  if  committed,  would 
be  punished  by  death.  But  this  rule  does  not  now 
hold  good,  because  at  that  time  all  felonies  were 
punishable  by  death,  whereas  now  but  few  are  so 
punishable;  while  in  some  States  the  death  penalty 
is  altogether  abolished. 

§  185.     Officer  may  use  all  Necessary  Force.  —  It 

may  be  said  that  an  officer  wliose  duty  it  is  to  make 
1  State  V.  Bland,  97  N.  C.  438. 


106  THE   LAW   OP   ARREST 

an  arrest  may  use  all  force  that  is  necessary  in  mak- 
ing the  arrest,  even  to  the  point  of  taking  life,^ 
when  there  is  no  other  way  of  making  the  arrest,  and 
it  makes  no  difference  whether  the  process  is  civil 
or  criminal.^ 

§  186.     May  not    use    Unnecessary   Force.  —  But 

it  is  his  duty  to  use  no  unnecessary  harshness 
or  violence ;  ^  and  if  he  use  more  force  than  is  neces- 
sary, he  himself  becomes  liable  in  trespass,^  and  in 
case  of  taking  life  may  be  guilty  of  manslaughter, 
or  even  murder,^  according  to  the  degree  of  wanton- 

2  State  V.  Dierberger,  96  Mo.  666;  Brooks  v.  Cora.,  61  Pa. 
St.  352;  Head  v.  Martin,  85  Ky.  480;  Mesraer  v.  Com.,  26 
Gratt.  (Va.)  976;  State  v.  Miller,  5  Ohio  Dec.  703;  Shovlin 
V.  Com.,  106  Pa.  St.  369;  James  v.  State,  44  Tex.  314; 
Golden  V.  State,  1  S.  C.  292;  State  v.  Sigmaii,  106  N.  C. 
728 ;  Patterson  v.  State,  91  Ala.  58 ;  Ramsey  v.  State,  92  Ga. 
53;  Murdock  v.  Ripley,  35  INIe.  472;  State  v.  Lafferty,  5 
Harr.  (Del.)  491;  People  v.  Durfee,  62  Mich.  487;  State  v. 
Fuller,  96  Mo.  165;  People  v.  Carlton,  115  N.  Y.  618;  U.  S. 
V.  Fullhart,  47  Fed.  Rep.  (U.  S.)  802. 

3  Clements  v.  State,  50  Ala.  117. 

4  Fulton  V.  Staats,  41  N.  Y.  498;  North  v.  People,  139 
111.  81;  Findlay  v.  Pruitt,  9  Port.  (Ala.)  195;  Lander  v. 
Miles,  3  Oreg.  35;  Burns  v.  State,  80  Ga.  544;  State  v.  Pate, 
7  Ohio  N.  P.  543;  Reneau  v.  State,  2  Lea  (Tenn.),  720  ; 
State  V.  Mahon,  3  Harr.  (Del.)  568 ;  Skidmore  v.  State,  43 
Tex.  93. 

5  Murdock  v.  Ripley,  35  Me.  472 ;  Golden  v.  State,  1  S. 
C.  292  ;  Patterson  v.  State,  91  Ala.  58 ;  Dilger  v.  Com.,  88 
Ky.  550. 

6  ^Villiams  v.  State,  44  Ala.  41  ;  State  v.  Bryant,  65  N.  C. 
327;  Reneau  v.  State,  2  Lea  (Tenn.),  720;  State  v.  Dietz, 
59  Kau.  576. 


FORCE  IN  THE  ACT  OF  ARREST        107 

ness  and  recklessness  of  human  life  manifested  in 
the  homicide. 

If  no  resistance  be  offered,  or  attempt  to  escape, 
he  has  no  right,  rudely  and  with  violence,  to  seize 
and  collar  his  prisoner.'^ 

§  1 87.  May  use  Force  to  prevent  Escape.  — 
Felony.  —  Any  force  which  may  be  used  to  ettect  an 
arrest  may  also  be  used  to  prevent  an  escape  and  re- 
tain custody  of  the  prisoner,  and  an  officer  attempt- 
ing to  arrest  a  person  guilty  of  a  felony,  at  least  of 
the  more  atrocious  kind,  may  kill  to  prevent  an 
escape  either  before  or  after  the  arrest  when  there 
is  no  other  way  of  preventing  it.^ 

It  has  been  wisely  held  that  this  doctrine  does 
not  apply  to  all  felonies,  but  only  to  those  of  a 
more  atrocious  kind,  as  rape  and  murder ;  there- 
fore it  was  held  that  one  was  not  justified  in  shoot- 
ing to  prevent  the  escape  of  one  who  had  stolen 
a  hog.^ 

§  188.  Misdemeanor.  —  With  much  stronger  rea- 
son would  the  right  to  kill  not  exist  in  preventing 
an  escape  in  case  of  a  misdemeanor;^'^  such  killing 

'  State  V.  Mahon,  3  Ilarr.  (Del.)  568. 

8  1  Hale's  P.  C.  481;  4  Bl.  Cora.  293;  Jackson  v.  State, 
66  Miss.  89. 

9  State  V.  Bryant,  6.5  X.  C.  327. 

10  Tiner  v.  State,  44  Tex.  128;  Williams  v.  Statf^,  44  Ala. 
41;  Thomas  v.  Kinkead,  55  Ark.  502;  Head  r.  Martin,  85 
Ky.  480;  Kischer  v.  Meehan,  11  Ohio  C  C.  403;  U.  S.  i: 


108  THE   LAW   OP   ARREST 

would  be  murder.  ^^  And  it  has  been  held  that  an 
officer  has  no  right,  when  endeavoring  to  execute  a 
warrant  on  a  bastardy  charge,  to  shoot  the  accused 
when  fleeing,  either  to  effect  his  arrest  or  to  prevent 
his  escape.  ^^  A  party  guilty  of  a  misdemeanor,  fired 
upon  by  an  officer  while  avoiding  arrest,  may  repel 
the  attack  by  shooting  the  officer,  and  the  killing 
will  not  necessarily  be  unlawful.  ^^ 

§  189.  Fleeing  from  Arrest.  —  There  is  a  broad 
distinction  between  resisting  arrest  and  the  avoid- 
ance of  it;  between  forcible  opposition  to  arrest  and 
merely  fleeing  from  it ;  and  there  is  no  rule  of  law 
that  he  who  flees  from  attempted  arrest  in  case  of 
misdemeanor  thereby  forfeits  his  right  to  defend 
his  life.^^ 

Even  in  case  of  one  charged  with  murder,  so  long 
as  the  one  sought  to  be  arrested  was  content  peace- 
ably to  avoid  arrest,  the  pursuing  party  had  no  right 
to  kill  him ;  but  whenever,  by  his  conduct,  he  puts 

Clark,  31  Fed.  Rep.  (U.S.)  710;  Brown  v.  Weaver,  76  Miss. 
7;  Conraddy  v.  People,  5  Park.  Cr.  (N.  Y.)  234;  Reneau 
V.  State,  2  Lea  (Tenn.),  720;  Forster's  Case,  1  Lewiii  (Eng. 
C.  C),  187;  Handley  v.  State,  96  Ala.  48;  Com.  v.  Greer. 
20  Pa.  Co.  Ct.  535  ;  Dilger  v.  Com.,  88  Ky.  550;  Wright  v. 
State,  44  Tex.  645.  Contra:  State  v.  Dierberger,  96  Mo. 
666. 

"  Reneau  v.  State,  2  Lea  (Tenn.),  720 ;  State  v.  Dietz,  59 
Kan.  576. 

12  Head  v.  INIartin,  85  Ky.  480. 

"  Tiuer  v.  State,  44  Tex.  128. 

"  Ibid. 


FORCE   IN   THE    ACT   OF    ARREST  109 

in  jeopardy  the  life  of  any  attempting  to  arrest  him, 
he  may  be  killed,  and  the  act  will  be  excusable.  ^^ 

§  190.  OflBcer  is  liable  for  Excessive  Force. — 
In  any  case,  a  felon  must  not  be  killed  in  endeavor- 
ing to  effect  his  capture,  if  the  officer  can  arrest 
him  without  such  severity,  by  obtaining  assistance, 
or  otherwise,  of  w'hich  the  jury  ought  to  inquire. ^^ 

The  amount  of  force  which  an  officer  may  law- 
fully use  in  making  an  arrest  is  so  much  as  is 
necessary  to  accomplish  his  object;  and  where  he 
is  charged  with  exceeding  that  limit,  the  jury  must 
judge  of  the  necessity  and  not  the  officer.  ^'  If  the 
amount  used  is  more  than  the  occasion  requires,  he 
is  criminally  liable  for  the  excess.  ^^  So  where  a 
police  officer  is  endeavoring  to  arrest  a  drunken  cab 
driver,  he  has  no  right  to  strike  him  with  his  club 
in  such  a  manner  as  to  break  his  arm,  and  an  in- 
dictment will  lie  for  the  assault  and  battery.  ^^ 

And  where  an  officer  makes  an  arrest  of  an  offender, 
whom  he  finds  taking  a  meal  at  a  public  hotel,  by 

16  state  V.  Anderson,  1  Hill  (S.  C),  327. 

16  Williams  v.  State,  44  Ala.  41. 

"  State  V.  Bland,  97  N.  C.  438. 

"  Patterson  v.  State,  91  Ala.  58;  State  v.  Fuller,  96  Mo. 
165;  State  v.  Lafferty,  5  Harr.  (Del.)  491  ;  Golden  v.  State, 
1  S.  C.  292  ;  State  v.  Mahon,  3  Ilarr.  (Del.)  568;  Mesmer  c. 
Com.,  26  Gratt.  (Va.)  976;  Ramsey  v.  State,  92  Ga.  5:5; 
lieaverts  r.  State,  4  Tex.  App.  175;  Mockabee  r.  Com.,  78 
Ky.  380  ;  Murdock  v.  Ripley,  35  Me.  472;  Bowling  c.  Com., 
7  Ky.  L.  821 ;  Dilger  v.  Com.,  88  Ky.  550. 

19  Golden  v.  State,  1  S.  C.  292. 


110  THE   LAW   OF   ARREST 

rudely  seizing  him  and  throwing  him  violently  to 
the  floor,  then  striking  him  witli  the  butt  of  his 
pistol  and  knocking  him  senseless,  no  evidence 
having  been  adduced  to  show  occasion  for  use  of 
such  force,  the  officer  was  properly  found  guilty  of 
assault.^'' 

§  191.  Officer's  Right  to  use  Club.  —  Where  an 
officer  whose  duty  it  was  on  a  public  occasion  to  see 
that  a  passage  was  kept  for  the  passing  of  vehicles, 
directed  a  person  in  front  of  the  crowd  to  stand 
back,  and  on  being  told  by  him  that  he  could  not 
for  those  behind  him,  struck  him  immediately  on 
the  face,  without  any  other  effort  to  remove  him, 
saying  that  he  would  make  him  stand  back,  it  was 
held  that  the  officer  exceeded  his  authority  and 
should  have  confined  himself  to  pressure.  ^^ 

Where  an  officer  finds  two  persons  fighting,  and, 
grasping  one  by  the  shoulder,  tells  him  that  he  is 
under  arrest,  if  the  prisoner  still  continues  to  strike 
at  his  opponent,  the  officer  may  be  justified  in  strik- 
ing him  with  his  club  in  order  to  stop  the  fight,  if 
he  uses  no  unnecessary  force  in  doing  so.^^ 

But  an  officer  is  not  justified  in  striking  one 
with  his  club  who  interferes  with  him  in  the  per- 
formance of  his  duty,  although  he  would  be  justified 
in  placing  him  under  arrest. ^^    Nor  has  an  officer 

20  Beaverts  v.  State,  4  Tex.  App.  175. 

21  Imason  v.  Cope,  5  C.  &  P.  (Eiig.  N.  P.)  193. 

22  State  V.  Pugh,  101  N.  C.  737. 

23  Levy  V.  Edwards,  1  C.  &  P.  (Eng.  N.  P.)  40. 


FORCE  IN  THE  ACT  OF  ARREST        111 

the  right  to  strike  with  his  club  one  who  merely 
holds  back,   and  is  not  otherwise  resisting.  2* 

§  192.  Demanding  Officer's  Number.  —  Any  citi- 
zen has  a  right  to  demand  of  a  police  officer  his 
number,  and  the  demanding  of  the  number  of  an 
officer  is  no  crime,  nor  is  the  temporarily  standing 
in  front  of  him  for  that  purpose.  And  where  a 
party  remonstrates  with  an  officer  for  making  an 
arrest,  or  demands  his  number,  he  is  not  guilty  of 
obstructing  an  officer.  ^^  But  if  the  remonstrance  be 
carried  to  a  point  where  the  prisoner  is  incited  to 
resist,  there  will  be  an  offence,^^  for  which  the  offi- 
cer may  arrest  the  inciting  party.  2" 

§  193.  OfiBcer's  Unlawful  Act  deprives  him  of 
Protection.  —  If  an  officer  has  brought  peril  upon 
himself  by  his  own  unlawful  act,  either  in  making 
the  arrest,  or  in  the  treatment  of  his  prisoner  while 
under  arrest,  he  will  not  be  justified  in  taking  the 
life  of  his  prisoner  on  the  ground  of  self-defence.  ^^ 

And  if  there  is  no  attempt  to  escape,  and  no 
forcible  resistance,  it  is  an  excess  of  authority  and 
a  criminal  offence,  which  may  well  be  called  an 
outrage  in  an  officer,  to  inflict  any  blow  or  other 
violence    upon  his    prisoner;   and   the   prisoner   is 

2*  Com.  V.  Weathers,  7  Kulp  (Pa.),  1. 

25  Com.  V.  The  Sheriff,  3  Brewst.  (Pa.)  343. 

26  Ibid. 

2T  White  V.  Edmunds,  1  Peake  (Eng.  N.  P.),  89. 
28  Com.  r.  Weathers,  7  Kulp  (Pa.),  1. 


112  THE   LAW    OF    ARREST 

justified  in  using  any  force  not  excessive  in  defend- 
ing himself  from  the  unauthorized  assault.^ 

§193a.  Officer  detailed  as  Guard.  —  Where  an 
officer  is  detailed  to  protect  a  judge  or  other  person, 
it  is  his  duty  to  see  that  no  harm  comes  to  the  per- 
son under  his  charge ;  and  if  the  circumstances  are 
such  that  he  may  reasonably  believe  that  killing  of 
a  person  attempting  to  assault  the  one  under  his 
care  is  necessary  for  the  safety  of  his  charge,  he  is 
justified  in  taking  the  life  of  the  assailant. ^"^ 

§  194.  Use  of  Handcuffs.  —  Because  an  officer  is 
responsible  for  the  safe-keeping  of  his  prisoner,  and 
may  become  liable  either  civilly  or  criminally  for 
his  escape,  the  law  leaves  the  question  of  necessity 
in  the  use  of  handcuff's  largely  to  the  discretion  of 
the  officer,  and  holds  him  liable  only  for  a  clear 
abuse  of  his  authority.  ^^ 

So  where  an  officer  handcuffed  one  charged  with 
a  misdemeanor  to  one  convicted  of  a  felony,  and 
walked  them  thus  together  through  the  streets,  he 
was  held  liable  for  the  abuse  of  his  authority.  ^^ 

29  State  V.  Belk,  76  N.  C.  10. 

80  In  re  Neagle,  135  U.  S.  1. 

81  Dehm  v.  Hinnian,  56  Conn.  320;  Wright  v.  Court,  4 
B.  &  C.  (Eng.  K.  B.)  596;  Leigh  v.  Cole,  6  Cox  C.  C.  329; 
Firestone  v.  Rice,  71  Mich.  377  ;  Cochran  v.  Toher,  1-4  j\Iiiin. 
385 ;  State  v.  Stalcup,  24  N.  C.  50.  But  see  Giroux  v.  State, 
40  Tex.  97. 

3-^  Leigh  V.  Cole,  6  Cox  C.  C.  (Eng.)  329. 


FORCE    IN    THE    ACT   OF   ARREST  113 

The  right  to  handcuff  must  depend  on  the  cir- 
cumstances of  each  particular  case,  considering  the 
nature  of  the  charge,  and  the  conduct  and  temper  of 
the  person  in  custody."'^ 

In  order  to  justify  an  officer  in  handcuffing  a 
prisoner  arrested  for  a  felony,  it  is  not  necessary 
that  he  should  be  unruly,  or  attempt  to  escape,  or 
to  do  anything  indicating  a  necessity  for  such  re- 
straint, nor  in  the  absence  of  these  indications 
that  he  should  be  a  notoriously  bad  character.^ 

Where  friends  of  the  prisoner  threaten  to  release 
him  by  force,  the  officer  may  be  justified  in  placing 
his  prisoner  in  irons  immediately  after  the  threats 
are  made.  ^^ 

«8  Leigh  V.  Cole,  6  Cox  C.  C.  (Eng.)  329. 
8^  Firestone  v.  Rice,  71  Mich.  377. 
8^  Cochran  v.  Toher,  14  Minn.  385. 


114  THE   LAW   OF   ARREST 


CHAPTER     IX 
DISPOSING   OF  THE  PRISONER 

§  195.  Officer's  Duty  after  Arrest.  —  After  an  ar- 
rest has  been  made,  the  next  duty  of  the  arresting 
party  is  to  have  his  prisoner  before  a  magistrate,^ 
in  order  that  the  offence  with  which  the  prisoner 
is  charged  may  be  inquired  into.  To  this  effect 
the  prisoner  may  be  confined  in  the  most  suitable 
place,  for  a  reasonable  time,  until  it  is  possible  for 
him  to  be  taken  before  the  magistrate.  The  length 
of  time  during  which  this  confinement  may  con- 
tinue lawful  will  vary  according  to  the  circum- 
stances of  the  case,  but  it  may  be  laid  down  as  a 
general  rule  that  it  must  continue  no  longer  than 
the  exigencies  of  the  case  absolutely  demand,  and 
any  further  delay  will  make  the  officer  guilty  of 
false  imprisonment.^ 

§  196.  Unconstitutional  Law  is  no  Protection  to 
Officer.  —  So  where  a  town  by-law  authorized  an 
officer  to  arrest  and  detain  without  warrant  for  the 
space  of  forty-eight  hours,   it  was  held    that  such 

1  See  §  96,  supra;  Kindred  v.  Stitt,  51  111.  401. 

2  Burke  v.  Bell,  36  Me.  317 ;  Cochran  v.  Toher,  14  Miun. 
385. 


DISPOSING   OF   THE   PRISONER  115 

law  was  repugnant  to  the  general  law  of  the  State, 
and  therefore  void,  and  that  in  an  action  for  tres- 
pass, the  officer  could  not  justify  his  acts  under  that 
law.^  And  where  the  detention  was  for  five  days,  it 
was  unreasonable,  as  a  matter  of  law,  and  should  not 
have  been  left  to  the  jury  to  consider  as  a  matter  of 

§  197.  Termination  of  OfBcer's  Control.  —  When 
an  officer  has  made  an  arrest  under  a  warrant,  his 
custody  of  the  prisoner  does  not  cease  until  the 
prisoner  has  been  discharged,  admitted  to  bail,  or 
committed  to  jail  upon  a  mittimus  issued  by  the 
court, ^  and  it  is  his  duty  to  exercise  such  control 
over  the  prisoner  that  he  may  not  escape  until  the 
discharge,  admission  to  bail,  or  commitment  has 
been  secured.  When  the  arrest  is  without  warrant, 
the  officer's  custody  may  cease  without  taking  the 
prisoner  before  the  magistrate,  in  certain  cases,  as 
where  he  makes  an  arrest  upon  suspicion,  and  the 
suspicion  subsequently  disappears,^  or  where,  even 
in  case  the  statute  commands  that  the  officer  take 
his  prisoner  before  the  magistrate,  the  express 
waiver  of  this  right  by  the  prisoner  will  justify 
the  officer  in  discharging  him  for  good  reason.^ 

8  Burke  v.  Bell,  36  Me.  ol7. 
*  Cochran  v.  Toher,  14  INIinn.  385. 
6  Com.  V.  Morihan,  4  Allen  (Mass.),  585. 
"  Burke  c.  Bell,  supra  cit. 

"  Brock  r  Stimson,  108  Mass.  520  ;  Phillips  v.  McFadden, 
125  Mass.  198. 


116  THE   LAW   OF   ARREST 

§  198.  Use  of  Handcuffs.  —  To  get  his  prisoner 
to  a  suitable  place  of  confinement,  or  before  the 
magistrate,  he  may  use  all  force  that  is  reasonably 
necessary,  and  he  may  handcuff  his  prisoner  when- 
ever it  may  reasonably  appear  to  him  to  be  neces- 
sary to  do  so  in  order  to  retain  his  custody  of  the 
prisoner,^  even  though  it  should  subsequently  be 
shown  that  the  act  of  handcuffing  was  entirely  un- 
necessary.^ But  an  officer  who  has  arrested  a  de- 
fendant in  a  civil  suit,  or  a  person  accused  of  a 
crime,  has  no  right  to  handcuff  him  unless  it  is 
reasonably  necessary,  or  he  has  attempted  to  make 
his  escape.  ^"^  And,  without  some  good  reason,  a 
prisoner  must  not  be  brought  shackled  into  court.  ^^ 

§  199.  Right  to  take  Prisoner  through  Streets  in 
Scanty  Attire.  —  If  a  person  legally  arrested,  even 
by  a  private  person  without  a  warrant,  is  not  suffi- 
ciently attired,  and  after  an  opportunity  to  clothe 
himself  is  given  him,  he  refuses  to  put  on  clothing, 
he  may  be  taken,  if  necessary,  through  the  public 
street  without  the  usual  attire,  and  delivered  thus 
to  the  proper  authority.  ^^ 

8  Dehm  v.  Hinman,  56  Conn.  320;  State  v.  Stalcup,  2 
Ired.  (X.  C.)  50. 

"  Firestone  v.  Rice,  71  Mich.  377. 

10  Wright  V.  Court,  4  B.  &  C.  (Eng.  K.  B.)  596. 

"  State  i;.  Kring,  64  Mo.  591  ;  Faire  v.  State,  58  Ala. 
74 ;  People  v.  Harrington,  42  Cal.  165  ;  Lee  v.  State,  51  Miss. 
566. 

12  Handcock  v.  Baker,  2  Bos.  &  Pul.  (Eng.  Com.  PI.)  260. 


DISPOSING    OF   THE   PRISONER  117 

§  200.  Searching  the  Prisoner.  —  An  officer  has 
a  right  to  search  the  prisoner  for  the  purpose  of 
taking  from  him  anything  that  may  be  used  as  evi- 
dence in  prosecuting  him,^"^  or  anything  that  may 
be  used  by  the  prisoner  in  esca^jing,  or  to  injure 
either  himself  or  others,  but  there  exists  no  right 
to  remove  from  the  prisoner  his  money  or  any  other 
valuables  that  may  be  used  by  him  in  providing  for 
his  defence.^* 

In  an  important  English  case  it  was  said  by  Jus- 
tice Patterson :  "  The  prisoner  complains  that  his 
money  was  taken  from  him,  and  that  he  was 
thereby  deprived  of  the  means  of  making  his  de- 
fence. Generally  speaking,  it  is  not  right  that  a 
man's  money  should  be  taken  away  from  him,  un- 
less it  is  connected  in  some  way  with  the  property 
stolen.  If  it  is  connected  with  the  robbery,  it  is 
quite  proper  that  it  should  be  taken.  But  unless 
it  is,  it  is  not  a  fair  thing  to  take  away  his  money 
which  he  might  use  for  his  defence.  I  believe  con- 
stables are  too  much  in  the  habit  of  taking  away 
everything  they  find  upon  a  prisoner,  which  is  cer- 
tainly not  right.     And  this  is  a  rule  which  ought 

18  Spalding  r.  Preston,  21  Vt.  9;  O'Connor  v.  Backlin, 
59  N.  H.  589;  Ex  parte  Hurn,  92  Ala.  102;  Reifsnyder 
V.  Lee,  44  Iowa,  101 ;  Dillon  v.  O'Brien,  IG  Cox  C.  C.  (Eng.) 
245. 

"  Stuart  V.  Harris,  69  111.  App.  068  ;  Rickers  v.  Siracox, 
1  Utah,  33;  Hubbard  v.  Gamer,  115  Mich.  400.  Contra: 
O'Connor  v.  Backlin,  oO  N.  II.  569;  Couiuiercial  Exch.  Bank 
V.  McLeod,  65  Iowa,  665. 


118  THE   LAW   OF   ARREST 

to  be  observed  by  all  policemen  and  other  peace 
officers.  "  ^^ 

§  201.  Removal  of  Clothing.  —  When  it  becomes 
necessary  to  search  and  take  property  from  the 
prisoner,  all  necessary  force  may  be  used  to  accom- 
plish this  end,^^  and  if  necessary  the  clothing  of  the 
prisoner  may  be  removed  to  complete  the  search.^" 

§  202.     Search   may  be   made   at    Time   of  Arrest. 

—  An  officer,  at  the  time  of  making  an  arrest,  may 
be  justified  in  searching  his  prisoner,  to  protect 
himself.  The  mere  fact  that  the  prisoner  is  drunk 
and  disorderly  will  not  justify  a  searching,  but  a 
prisoner  may,  by  violent  language  and  conduct,  make 
such  search  a  reasonable  and  prudent  proceeding.  ^^ 

§  203.     Compulsory  Physical  E:xamination. — The 

right  to  search  does  not  give  the  right  to  make  a 
compulsory  physical  examination  for  the  purpose  of 
obtaining  evidence.  ^^ 

The  right  to  one's  person  may  be  said  to  be  a 
right  of  complete  immunity,  —  to  be  let  alone ;  '■^^ 
and  further,   it  has  been  held   that  to  subject  the 

"  Rex  V.  O'Donnell,  7  C.  &  P.  (Eng.  N.  P.)  138. 

16  Dillon  r.  O'Brien,  16  Cox  C.  C.  (Eng.)  245. 

1^  Woolfolk  V.  State,  81  Ga.  551. 

18  Leigh  V.  Cole,  G  Cox  C.  C.  (Eng.)  329. 

i»  People  V.  McCoy,  45  How.  Pr.  (X.  Y.)  216;  Agnew  v. 
Jobson,  13  Cox  C.  C.  (Eng.)  625;  Blackwell  v.  State,  67  Ga. 
76. 

^  Cooley  on  Torts,  p.  29. 


DISPOSING    OF   THE    PRISONER  119 

prisoner  to  a  physical  examination  against  his  will, 
is  a  violation  of  the  spirit  of  the  Constitution  of 
the  United  States,  Article  V,  Amendment,  which 
declares  that  no  person  shall,  in  any  criminal  case, 
be  compelled  to  be  a  witness  against  himself. ^^ 

But  an  officer  may  compel  the  accused  to  put  liis 
foot  into  a  footprint  found  at  the  place  where  the 
crime  was  committed,  and  at  the  trial  testify  to 
the  result  of  the  comparison,  ^^  or  compel  the  accused 
to  exhibit  tattoo  marks  on  his  arm  for  the  purpose 
of  identification. 2^ 

And  where  the  prisoner,  charged  with  homicide, 
alleged  that  her  hand,  which  she  had  wrapped  in 
bandages,  had  been  burned  in  her  endeavor  to  put 
out  the  fire  upon  the  deceased,  she  was  compelled 
to  unwrap  it  and  show  it  to  a  physician,  and  the 
examination  was  held  justifiable. ^^ 

21  People  V.  :\IcCoy,  4.5  How.  Pr.  (X.  Y.)  216. 

22  State  V.  Graham,  74  X.  C.  640. 

23  State  V.  Ah  Chney,  14  Nev.  79. 
2*  State  V.  Garrett,  71  N.  C.  85. 


120  THE   LAW   OF   ARREST 


CHAPTEE   X 
ARREST  IN  EXTRADITION  PROCEEDINGS 

§  204.     Extradition    and    Rendition    distinguished. 

—  The  process  of  demanding  and  giving  up  fugi- 
tives from  justice,  if  between  nations,  is  called  ex- 
tradition ;  if  between  States  of  the  same  nation,  is 
called  rendition,  although  it  is  very  usual  to  term 
the  process  of  demanding  and  giving  up  fugitives 
from  justice  "  extradition,"  whether  between  States 
or  nations. 

§  205.  Extradition.  —  Definition.  —  Extradition  is 
the  surrender  by  one  sovereign  State  to  another,  on 
its  demand,  of  persons  charged  with  the  commis- 
sion of  crime  within  its  jurisdiction,  that  they  may 
be  dealt  with  according  to  its  laws.  ^ 

§  206.  Matter  of  Comity.  —  Except  under  the 
provisions  of  treaties,  the  delivery  by  one  country 
to  another,  of  fugitives  from  justice,  is  a  matter 
of  comity,  and  not  of  obligation;^  and  a  State  of 
the  United  States  cannot  regulate  the  surrender  of 

1  Bouvier's  Law  Diet.  (Extradition). 

2  U.  S.  V.  Raueher,  119  U.  S.  407. 


ARREST   IN   EXTRADITION   PROCEEDINGS        121 

fugitives  from  justice  to  foreign  countries,  for  that 
province  belongs  solely  to  the  Federal  government.  ^ 

§  207.  Authority  for  Issue  of  Warrant.  —  A  war- 
rant for  an  arrest  in  an  extradition  proceeding  may 
issue  under  authority  of  sections  5270-5280  of  the 
Eevised  Statutes  of  the  United  States,  and  under 
the  provisions  of  the  Constitution  of  the  United 
States,  Article  IV,  Amendment. 

§  208.  Magistrates  designated.  —  The  magistrates 
authorized  by  the  Eevised  Statutes,  section  5270, 
to  issue  such  warrants,  are  the  justices  of  the  Su- 
preme Court,  circuit  judges,  district  judges,  any 
commissioner  authorized  by  any  court  of  the  United 
States,  or  a  judge  of  a  court  of  general  jurisdiction 
of  any  State. 

§  209.  Requisites  of  "Warrant.  —  The  requirements 
respecting  complaint,  oath,  and  of  the  warrant 
itself,  are  the  same  as  those  respecting  ordinary 
warrants.  It  need  not  be  accompanied  by  the  in- 
dictment or  affidavit  upon  which  it  is  based. ^ 

The  warrant  must  show  on  its  face  that  the  mag- 
istrate issuing  it  is  one  authorized  to  act  in  extra- 
dition cases."''    Such  warrant  is  void,  unless  it  shows 

8  People  V.  Curtis,  50  N.  Y.  321. 

*  Ex  parte  Stanley,  25  Tex.  App.  372 ;  People  v.  Don- 
ahue, 84  N.  Y.  438. 

6  In  re  Ferez,  7  Blatchf.  (U.  S.  C.  C.)  35. 


122  THE   LAW   OF   ARREST 

on  its  face  that  a  requisition  has  been  made  under 
the  authority  of  the  foreign  government,  on  the  gov- 
ernment of  the  United  States,  and  the  authority  of 
the  latter  government  obtained,  to  apprehend  such 
fugitive.^  It  should  also  state  the  offence  charged, 
which  must  be  an  oft'ence  named  in  the  treaty  of 
extradition.     It  runs  throughout  the  United  States.'^ 

§  210.     Re-arrest  after  Discharge  on  Habeas  Corpus. 

—  If  an  alleged  fugitive  be  discharged  on  a  writ  of 
habeas  corpus,  he  may  be  immediately  re-arrested 
on  a  new  complaint  and  warrant.^ 

§  211.  Taking  before  a  Magistrate.  —  Upon  an 
arrest  in  an  extradition  proceeding,  the  alleged  fugi- 
tive from  justice  is  to  be  brought  before  the  official 
issuing  the  warrant  so  that  evidence  of  his  crimi- 
nality may  be  considered.  The  degree  of  evidence 
must  be  such  that  according  to  the  laws  of  the 
place  where  the  fugitive  is  found,  it  would  justify 
his  apprehension  and  commitment  for  trial  if  the 
crime  or  offence  had  been  committed  there. 

§  212.    Delivery  of    Fugitive  to  Demanding    State. 

—  If  the  magistrate  deems  the  evidence  sufficient, 
he  will  certify  the  same,  together  with  a  copy  of 
the  testimony  taken  before  him,  to  the  Secretary  of 

6  In  re  Ferez,  7  Blatchf.  (U.  S.  C.  C)  35. 
■>  Tn  re  Heinrich,  5  Blatchf.  (U.  S.  C.  C.)  414. 
8  In  re  Macdonnell,  11  Blatchf.  (U.  S.  C.  C.)  170. 


ARREST    IN    EXTRADITION   PROCEEDINGS         123 

State,  and  commit  the  jjrisoner  to  jail  until  the  sur- 
render he  made,  which  must  be  within  two  calendar 
months.  The  Secretary  of  State  will  then,  upon 
proper  demand  being  made  by  the  foreign  govern- 
ment, order,  under  his  hand  and  seal  of  office,  in 
the  name  and  by  the  authority  of  the  President, 
the  person  so  committed  to  be  delivered  to  such 
person  as  may  be  authorized  in  the  name  and  on 
behalf  of  such  foreign  government  to  receive  him. 

§  213.  Scope  of  Habeas  Corpus  Writ.  —  A  fugi- 
tive about  to  be  returned  to  the  State  from  which 
he  fled  should  be  allowed  enough  time  to  apply  for 
a  writ  of  haheas  corinis,  in  the  State  of  his  asylum. 
But  on  a  writ  of  Jiaheas  corpus  the  guilt  or  inno- 
cence of  the  prisoner  will  not  be  inquired  into,  for 
that  is  exclusively  within  the  province  of  the  courts 
of  the  demanding  State.  ^  The  only  matters  to  be 
inquired  into  on  such  writ  are  whether  the  pro- 
ceedings for  the  extradition  have  been  regular  and 
in  compliance  with  the  Constitution  and  laws  of 
the  United  States. 

§  214.  Negotiations  must  be  by  Highest  Execu- 
tive Officials.  —  There  can  be  no  extradition  or  ren- 
dition without  a  demand  by  the  highest  executive 
authority  in  the  State  from  which  the  fugitive  from 
justice  has  fled,  upon  the  highest  executive  author- 

9  In  re  Sheldon,  34  Ohio  St.  319  ;  In  re  White,  55  Fed. 
Rep.  (U.  S.)  5i  ;  Ex  parte  Devine,  74  Miss.  715. 


124  THE   LAW   OP   ARREST 

ity  of  the  State  in  which  the  fugitive  is  asylumed. 
And  a  warrant  to  arrest  a  fugitive  in  the  harboriog 
State  must  be  issued  only  upon  sanction  and  order 
of  the  highest  executive  official,  —  the  chief  magis- 
trate of  that  State. ^^  The  judiciary  of  the  United 
States  possess  no  jurisdiction  in  matters  of  extra- 
dition until  a  demand  has  been  thus  made  and 
sanctioned. 

§  215.  Method  of  Procedure.  —  The  usual  method 
of  action  in  extradition  cases,  is  for  some  police 
officer,  or  other  special  agent,  to  obtain  proper 
papers  in  his  own  country  and  go  with  them  to 
a  foreign  country,  and  there,  with  the  aid  of  his 
government's  representative  to  that  country,  prose- 
cute his  case  and  return  with  the  fugitive  in  his 
custody  to  the  country  having  jurisdiction  of  the 
crime.  ^^ 

§  216.  Matter  of  Treaty  or  Comity.  —  Although 
the  matter  of  extradition  is  usually  governed  by 
treaty,  it  is  not  necessarily  so,  for  the  matter  in 
absence  of  a  treaty  rests  entirely  with  the  govern- 
ment on  which  the  demand  is  made,  and  each  gov- 
ernment may  surrender  although  no  treaty  exists. 
And  where  a  treaty  does  exist,  the  country  upon 
which  the  demand  is  made,  may,  through  comity, — 

10  In  re  Ferez,  7  Blatchf.  (U.  S.  C.  C.)  35. 
"  8  Op.  Atty.  Gen.  521. 


ARREST   IN   EXTRADITION   PROCEEDINGS  125 

that  is,  good  will, —  deliver  up  a  fugitive  from 
justice  for  a  crime  not  mentioned  in  the  existing 
treaty.  ^^ 

§  217.  No  Comity  on  Part  of  United  States.  —  The 
United  States,  however,  has  always  declined  to  sur- 
render criminals,  unless  bound  by  treaty  to  do  so,^^ 
and  the  courts  of  this  country  possess  no  power  to 
arrest  and  surrender  to  a  foreign  country  fugitives 
from  justice,  except  as  authorized  by  treaty  stipula- 
tions and  Acts  of  Congress  passed  in  pursuance 
thereof.  14 

§  218.  Surrendered  Fugitive  may  be  tried  only 
for  Crime  upon  which  he  "was  extradited.  —  A  fugi- 
tive surrendered  by  a  foreign  government  can  only 
be  tried  for  the  crime  for  which  he  was  extradited,  ^^ 
until  after  he  has  been  released  from  custody  and 
given  sufficient  opportunity  to  return  to  the  coun- 
try from  which  he  was  extradited.  After  sufficient 
time  for  this  purpose  has  elapsed,  he  may  be  re- 
arrested and  tried  for  any  offence  with  which  he  is 
charged. 

12  Ex  parte  Foss,  102  Cal.  347. 

"  Holmes  r.  Jeniiison,  14  Pet.  (U.  S.)  540. 

1*  In  re  Kaine,  14  How.  (U.  S.)  103. 

16  U.  S.  V.  Watts,  14  Fed.  Rep.  (U.  S.)  130;  U.  S.  v. 
Raucher,  119  U.  S.  407;  Foster  v.  Xeilsoii,  2  Pet.  (U.  S.) 
254;  Ex  parte  Hibbs,  26  Fed.  Rep.  (U.  S.)  421  ;  State  v. 
Vanderpool,  39  Ohio  St.  273;  Com.  v.  Hawes,  13  Bush 
(Ky.)>  697. 


126  THE   LAW   OP   ARREST 

§  219.     Kidnapped    Fugitive  tried  for  any   Crime. 

—  But  where  a  fugitive  from  justice  has  been  kid- 
napped from  a  country,  betweSn  which  country  and 
the  United  States  an  extradition  treaty  exists,  the 
prisoner  may  be  tried  for  an  offence  not  named  in 
the  existing  treaty, ^^  because  the  United  States  in 
the  trial  of  the  accused  owes  no  duty  to  the  State 
from  which  he  was  kidnapped,  the  treaty  of  extra- 
dition not  having  entered  into  the  incident. 

§  220.     Fugitive  in  Rendition  tried  for  any  Crime. 

—  As  between  the  different  States  of  the  United 
States,  any  fugitive  given  up  in  rendition  may  be 
tried  for  the  offence  named  in  the  requisition,  or 
any  other  offence  not  named  therein.  ^'^ 

Where  a  person  has  been  returned  in  rendition, 
as  a  fugitive  from  justice  from  another  State,  and 
upon  trial  has  been  acquitted  of  the  offence  charged, 
he  may  be  at  once  re-arrested  and  prosecuted  upon 
another  charge,  without  being  given  an  opportunity 
to  return  to  the  State  of  his  previous  asylum.  ^^ 

But  where  one  has  been  extradited  for  an  offence 

16  Ker  V.  Illinois,  119  U.  S.  436. 

1'  Mahon  v.  Justice,  127  U.  S.  700;  Carr  v.  State,  104 
Ala.  4;  Com.  v.  Wright,  158  Mass.  149  ;  State  v.  Stewart, 
60  Wis.  587;  Lascelles  v.  Georgia,  148  U.  S.  537;  Lascelles 
V.  State,  90  Ga.  347  ;  State  v.  Kealy,  89  Iowa,  94 ;  People 
V.  Cross,  135  N.  Y.  536  ;  In  re  Miles,  52  Vt.  609  ;  State  v. 
Glover,  112  N.  C.  896.  Contra:  Ex  parte  McKniglit,  48 
Ohio  St.  588 ;   State  v.  Hall,  40  Kan.  338. 

1*  Browning  v.  Abrams,  51  How.  Pr.  (N.  Y.)  172;  Reid 
V.  Ham,  54  Minn.  305.  Contra :  Comjpton  v.  Wilder,  40 
Ohio  St.  130. 


ARREST  IN   EXTRADITION   PROCEEDINGS         127 

which  is  not  a  crime,  he  caunot  be  detained  to 
answer  for  another  offence  until  he  has  had  an  op- 
portunity to  return  to  the  State  whence  he  was 
extradited,  ^^  And  one  under  bail  cannot  be  con- 
sidered as  having  an  opportunity  to  return  to  the 
State  whence  he  was  taken,  ^^^  because  one  under  bail 
cannot  be  considered  as  having  a  right  to  leave  the 
State  in  which  he  is  bailed. 

§  221.     Jurisdiction  procured    by  Stratagem.  —  A 

prisoner  cannot  set  up  as  a  ground  for  discharge 
that  he  has  been  enticed  into  the  State  by  fraudu- 
lent representations,^^  nor  that  the  extradition  pro- 
ceedings in  the  other  State  were  irregular, ^^  j^or  that 
he  was  kidnapped  and  thus  brought  into  the  juris- 
diction of  the  trial  court.  '^^ 

So  where  one  was  indicted  in  Kentucky  for  mur- 
der, and  escaped  to  West  Virginia,  from  which 
State  he  was  forcibly  abducted  to  Kentucky,  it 
was  held  that  the  prisoner  was  not  entitled  to  be 
discharged  from  custody  under  a  writ  of  habeas 
corpus  from  the  Circuit  Court  of  the  United  States. 
And  the  fact  that  extradition  proceedings  had  been 
instituted  was  not  material.  2* 

^3  In  re  Cannon,  47  Mich.  481.  See  also  Ex  parte  Slan- 
son,  73  Fed.  Rep.  (U.  S.)  GGG. 

20  In  re  Cannon,  supra  cit. 

2^  In  re  Brown,  4  N.  Y.  Cr.  Rep.  576. 

^  In  re  Miles,  52  Vt.  G09. 

23  Ker  V.  Illinois,  119  U.  S.  436 ;  Mahon  i-.  Justice,  127  U.  S. 
700. 

2*  Mahon  v.  Justice,  supra  cit- 


128  THE   LAW   OF   ARREST 

§  222.  Constitutional  Provisions.  —  Eespectingin- 
terstate  reudition  it  is  provided  by  the  Constitution 
of  the  United  States,  Article  IV,  Section  2,  that  "  A 
person  charged  in  any  State  with  treason,  felony, 
or  other  crime,  who  shall  flee  from  justice  and  be 
found  in  another  State,  shall,  upon  demand  from 
the  executive  authority  of  the  State  from  which  he 
fled,  be  delivered  up,  to  be  removed  to  the  State  hav- 
ing jurisdiction  of  the  crime."  The  words  "trea- 
son, felony,  or  other  crimes  "  cover  misdemeanors 
as  well  as  felonies.  ^^  It  is,  however,  safe  to  say 
that  there  will  be  no  rendition  for  offences  that  are 
too  trivial  either  in  financial  importance,  or  in 
moral  obliquity,  to  receive  the  attention  of  the  exec- 
utive authority  of  the  State  in  which  the  fugitive 
has  taken  refuge,  to  the  exclusion  of  State  matters 
of  greater  importance. 

§  223.  Arrest  may  be  before  Extradition  Pro- 
ceedings are  begun.  —  A  fugitive  from  justice  may 
be  arrested  in  the  State  to  which  he  has  Hed,  even 
before  the  rendition  proceedings  have  been  started, ^"^ 
by  making  complaint  upon  oath  before  the  proper 
magistrate,  clearly  setting  forth  the  facts  constitut- 
ing the  offence.  2^ 

25  Ex  parte  Reggel,  114  U.  S.  642;  In  re  Greenough,  31 
Yt.  279;  Morton  v.  Skinner,  48  Ind.  123  ;  Com.  t,\  Johnston, 
12  Pa.  Co.  Ct.  263;  State  v.  Hudson,  2  Oliio  N.  P.  1. 

26  In  re  Fetter,  3  Zab.  (N.  J.)  311.  But  see  Malcolmson 
V.  Scott,  56  Mich.  459. 

27  In  re  Ileyward,  1  Sandf.  (N.  Y.)  701. 


ARREST   IN    EXTRADITION    PROCEEDINGS  129 

§  224.  Preliminary  Proceedings  before  Requisi- 
tion.—  Before  there  can  be  a  requisition  or  rendi- 
tion in  such  interstate  matter,  there  must  have  been 
an  indictment  found,  or  an  aftidavit  made  before 
a  proper  magistrate,  in  the  State  from  which  the 
requisition  papers  issue,  charging  the  fugitive  with 
treason,  felony,  or  other  crime, ^"^  a  copy  of  which 
indictment  or  affidavit  must  be  certified  as  au- 
thentic by  the  Governor  of  the  State  from  which 
the  fugitive  fled,  and  presented  with  the  requisi- 
tion papers.  Upon  the  matter  being  thus  properly 
presented,  the  executive  of  the  State  to  which  the 
fugitive  has  fled  should  cause  the  arrest  and  deten- 
tion of  the  fugitive  for  a  period  of  not  longer  than 
six  months,  until  the  agent  of  the  State  presenting 
the  requisition  may  appear.'^ 

§  225.  Nature  of  Crime  charged.  —  As  the  offence 
charged  must  be  a  crime,  rendition  will  not  lie  for 
a  prosecution  in  bastardy  proceedings.  3** 

The  term  "  other  crime, "  as  an  extraditable  offence, 
includes  statutory  as  well  as  common  law  crimes  ;^^ 
in  fact  any  offence  indictable  by  the  laws  of 
the  demanding  State  may  furnish  grounds  for 
extradition.  ^2 

28  Ex  parte  White,  49  Cal.  433. 

29  Act  of  Cong.  Feb.  12,  1793;  Stat.  Large,  302. 
8^  In  re  Cannon,  47  Mich.  481. 

*^  People  ex  rel.  Jourdan  v.  Donahue,  84  N.  Y.  438. 
82  Browu's  Case,  112  Mass.  409. 

y 


180  THE    LAW    OF    ARREST 

§  226.  Surrender  in  Rendition  is  Obligatory.  — 
The  duty  to  surrender  in  rendition,  being  com- 
manded by  the  Constitution  of  the  United  States, 
Article  IV,  Section  2,  is  obligatory,  and  does  not 
rest  on  comity,  as  in  extradition.^ 

§  227.  Who  is  a  Fugitive  from  Justice  ?  —  Under 
a  statute  providing  interstate  rendition,  a  person  is 
a  fugitive  from  justice  w^hen  he  has  committed  a 
crime  within  a  State,  and  withdrawn  from  the 
jurisdiction  of  its  courts  without  waiting  to  al:)ide 
its  consequences,^*  and  it  matters  not  that  some 
other  cause  than  a  desire  to  flee  induced  such 
withdrawal.  ^^ 

To  warrant  the  extradition  of  such  fugitive  from 
justice,  it  is  not  necessary  that  he  should  have  left 
the  State  wherein  the  crime  was  committed  for  the 
purpose  of  avoiding  a  prosecution,  either  antici- 
pated or  begun,  but  it  is  sufficient  that  having 
committed  an  offence  which  by  the  laws  of  the 
State  constitutes  a  crime,  when  it  comes  to  subject 
him  to  the  process  of  the  State  to  answer  for  his 
offence,   he  has    left    its  jurisdiction  and   is  found 

^^  In  re  Voorhees,  32  N.  J.  145. 

«*  State  V.  Hall,  115  N.  C.  811;  In  re  Voorhees,  32  N.  J. 
141  ;  Hibler  v.  State,  43  Tex.  197  ;  In  re  White,  55  Fed. 
Rep.  (U.  S.)  54. 

s5  White  ;;.  Vallely,  14  U.  S.  App.  87  ;  In  re  Block,  87 
Fed.  Rep.  (U.  S.)  981;  Roberts  r.  Reilly,  IIG  U.  S.  80;  In  re 
Sultan,  115  X.  C  57;  State  v.  Richter,'37  Minn.  436;  In  re 
White,  50  Fed.  Rep.  (U.  S.)  54. 


ARREST    IN   EXTRADITION    PROCEEDINGS  131 

within  the  territory  of  another  State.  ^^  Extradi- 
tion does  not  lie  for  a  party  who  is  not  a  fugitive 
from  justice  alth.ough  he  has  constructively  com- 
mitted a  crime  in  a  State. '^" 

36  AVhite  ('.  Viillely,  U  U.  S.  App.  87. 

37  Wilcox  1-.  Xolze,  34  Ohio  St.  520 ;  Mohr's  Case,  73  Ala. 
503. 


132  THE  LAW   OF   ARREST 


CHAPTER  XI 

EVIDENCE   NECESSARY   TO   ESTABLISH   THE 
OFFENCE 

§  228.  Proof  must  be  Beyond  a  Reasonable 
Doubt.  —  An  officer  who,  upon  his  own  responsibil- 
ity, makes  an  arrest  without  a  warrant,  is  generally 
called  upon  to  show  that  an  offence  was  committed 
which  justified  him  in  arresting  the  offender. 

To  establish  the  crime  he  has  the  burden  of  prov- 
ing, beyond  a  reasonable  doubt,  all  the  elements 
which  go  to  make  up  the  offence.-^  And  the  mere 
preponderance  of  evidence  is  never  sufficient  to  con- 
vict one  of  crime,  but  a  greater  degree  of  proof  is 
necessary,  —  proof  that  will  not  allow  a  reasonable 
doubt  of  the  prisoner's  guilt  to  remain  in  the  mind 
of  the  court,  or  of  the  jury,  as  the  case  may  be.  ^ 

§  229.     Burden   of    Proof  Remains   on  Prosecutor. 

—  And  this  burden  remains  with  him  to  the  end  of 
the  case,  for  the  burden  of  proof  as  to  the  necessity  of 
establishing  the  ultimate  fact  to  be  proved,  that 
is,  the  fact  of  the  commission  of  the  crime,  or  the 

1  Farley  v.  State,  127  Ind.  419;  State  v.  Rogers,  119 
N.  C.  793. 

2  Lee  V.  State,  76  Ga.  498;  Gray  v.  Com.,  101  Pa.  380. 


EVIDENCE   TO    ESTABLISH    THE    OFFENCE         133 

corpus  delicti,^  the  identity  of  the  prisoner,*  and 
the  guilt  of  the  accused  never  shifts  from  the 
prosecution.  •'' 

§  230.  Burden  of  Giving  Evidence  may  shift.. — 
While  the  burden  of  proof  in  making  out  a  prima 
facie  case,  where  a  crime  is  charged,  never  shifts 
from  the  prosecution,  yet  where  the  defendant,  in- 
stead of  producing  proof  to  negative  the  proof 
adduced  by  the  prosecution,  proposes  to  show  an- 
other and  distinct  proposition  which  avoids  the 
effect  of  the  evidence  adduced  by  the  prosecution, 
there  the  burden  of  proof,  or  rather  the  burden  of 
giving  evidence,  does  shift,  and  rests  upon  the  party 
who  proposes  to  show  the  latter  fact.  ^  As  where 
the  prisoner  endeavors  to  prove  an  alibi,  that  being 
a  new  and  distinct  proposition  which,   if  proved, 

8  Rex  V.  Burdette,  4  B.  &  Aid.  (Eng.  K.  B.)  95;  State  v. 
Davidson,  30  Vt.  377;  People  v.  Palmer,  109  N.  Y.  110; 
Willard  v.  State,  27  Tex.  App.  3S6.  The  corfjus  delicti  cau- 
iiot  be  established  alone  by  confessions  of  the  accused ; 
otiier  evidence  is  necessary.  People  v.  Hennessey,  15  Wend. 
(X.  Y.)  147  ;  Gore  v.  People,  162  III.  205;  State  v.  German, 
54  Mo.  526;  People  r.  Tarbox,  115  Cal.  57;  Attaway  v. 
State,  35  Tex.  Cr.  403;  Holland  v.  State,  39  Fla.  178; 
Harden  r.  State,  109  Ala.  50. 

*  Winslow  V.  State,  76  Ala.  42;  Gore  v.  People,  102  111. 
265. 

6  People  V.  Plath,  100  X.  Y.  590;  Jones  v.  State,  51  Ohio 
St.  331;  Williams  v.  People,  101  111.  385;  State  v.  Harvey, 
131  Mo.  330;  Gravely  v.  State,  38  Neb.  871. 

e  Powers  v.  Russell,  13  Pick.  (Mass.)  69. 


134  THE   LAW   OF   ARREST 

will  avoid  the  effect  of  the  plaintiff's  evidence,  the 
burden  of  proving  the  alibi  rests  upon  the  accused.  "^ 

§  231.  Burden  of  Proof  does  not  shift.  —  Yet 
even  there  the  burden  of  ^rooi  does  not  shift  in  a 
practical  sense,  for  if  the  prisoner  fails  to  establish 
the  new  and  distinct  proposition  which  he  inter- 
poses in  his  own  defence,  and  which  need  only  be 
established  by  a  preponderance  of  evidence,  what- 
ever evidence  he  does  produce  to  that  end  must  be 
weighed  in  the  balance,  and  if  upon  all  evidence 
produced  by  both  parties,  there  remains  a  reason- 
able doubt  of  the  prisoner's  guilt,  he  must  be  ac- 
quitted,^ for  the  prisoner  is  always  entitled  to  the 
benefit  of  a  reasonable  doubt. 

§  2.32.  Presumption  of  Innocence.  —  While  it  is 
a  well-established  principle  of  law  that  "  a  man  is 
presumed  to  be  innocent  until  he  is  found  guilty. " 
this  presumption  has  no  other  effect  than  casting 
upon  the  State  the  burden  of  proving  the  guilt  of 
the  accused  beyond  a  reasonable  doubt.  It  has  no 
weight  as  evidence  in  the  trial,  and  although  it 
calls  for  evidence  from  the  State  it  is  not  evidence 
for  the  accused.^ 

''  Com.  V.  Choate,  105  Mass.  451;  Carlton  v.  People,  150 
111.  181;  State  v.  Taylor,  118  Mo.  153;  Towns  v.  State, 
111  Ala.  1  ;  People  v.  Pichette,  111  Mich.  461. 

8  Com.  V.  Choate,  105  Mass.  4.52;  Walters  v.  State,  39 
Ohio  St.  215;  State  v.  Chee  Gong,  16  Oreg.  534 ;  Borrego  v. 
Ter.,  8  N.  M.  446. 

^  State  V.  Smith,  65  Conn.  285. 


EVIDENCE   TO    ESTABLISH    THE   OFFENCE         135 

The  accused  starts  into  a  trial  with  the  presump- 
tion of  innocence  in  his  favor,  and  it  stays  with 
him  until  it  is  driven  out  of  the  case  by  testimony. 
And  whenever  the  evidence  shows  beyond  a  reason- 
able doubt  tliat  the  crime  as  charged  has  been 
committed,  or  that  a  crime  exists,  then  the  pre- 
sumption of  innocence  disappears  from  the  case.^*^ 

§  233.  Burden  -when  Charge  is  Use  of  Excessive 
Force.  —  Where  an  otticer  is  on  trial  charged  with 
using  excessive  force  in  the  act  of  making  an  arrest, 
the  burden  is  on  the  State  to  show  the  use  of  ex- 
treme measures.  And  all  the  circumstances  sur- 
rounding the  act  of  arrest  should  be  looked  into  to 
determine  that  question.  ^^ 

§  234.  Burden  to  shovy  Offence  in  Officer's  Pres- 
ence. —  Where  an  officer  arrests  a  person  without  a 
warrant,  for  an  offence  less  than  a  felony,  the  bur- 
den is  on  him,  when  sued  in  trespass  therefor,  to 
sliow  that  the  offence  was  in  fact  committed  in  his 
presence.  ^^ 

§  235.  Burden  to  show  Authority  to  arrest.  — 
And  a  person  who  assumes  to  arrest  another  who, 
when  sued  in  trespass  therefor,  attempts  to  justify 
his  act  on  the  ground  that  he  acted  as  a  jjolice  offi- 

10  Allen  V.  U.  S.,  164  U.  S.  500.  Contra .-  Fark-y  v.  State, 
127  Ind.  421. 

11  State  r.  Dierberger,  06  Mo.  666. 
1-  Shanley  i-.  Wells,  71  III.  78. 


136  THE    LAW    OF    ARREST 

cer,  must  not  merely  show  that  he  was  an  officer  de 
facto,  but  that  he  was  an  officer  de  jure,  that  he  was 
legally  and  duly  qualified  to  act  as  an  officer.  ^^ 

§  236.  Burden  to  show  License.  —  In  an  action 
for  selling  articles  without  a  license,  the  burden  is 
upon  the  defendant  to  show  that  he  has  complied 
with  the  law  and  has  a  license  to  sell.^*  But 
the  presumption  of  innocence  is  still  with  the 
defendant.  ^^ 

§  237.     Weight    of    Evidence    on    Insanity.  —  Ee- 

specting  the  weight  of  evidence  necessary  to  estab- 
lish the  insanity  of  the  defendant  in  a  criminal 
case,  there  are  two  distinct  lines  of  authority.  The 
weight  of  authority  in  this  matter  seems  to  be  that 
the  defendant  in  a  criminal  action  has  the  burden 
of  establishing  his  plea  of  insanity  only  to  such  an 
extent  as  to  create  a  reasonable  doubt  of  his  sanity.  ^^ 
The  other  view  is  that  the  defendant  must  establish 
his  insanity  by  a  greater  degree  of  evidence,  —  that 
which  is  a  preponderance  of  the  testimony.  ^"^ 

13  Short  V.  Symmes,  150  Mass.  298. 

"  Com.  V.  Holstine,  132  Pa.  St.  357;  Williams  v.  People, 
121  111.  84;  Com.  v.  Thurlow,  24  Pick.  (Mass  )  374;  Liggitt 
V.  People,  26  Col.  364;  State  v.  Sorrell,  98  N.  C.  738; 
State  V.  Keggon,  55  N.  H.  19  ;  State  v.  Shelton,  16  Wash. 
590;  People  v.  Curtis,  95  Mich.  212;  Birrr.  People,  113 
111.  647. 

1^  Com.  V.  Holstine,  supra  cit. 

16  Davis  V.  U.  S  ,  160  U.  S.  469. 

"  People  V.  Bemmerly,  98  Cal.  299  ;  Loegrove  v.  State, 
31  Tex.  Cr.  Rep.  491. 


EVIDENCE   TO    ESTABLISH    THE    OFFENCE         137 

§  238.  Evidence  of  Bad  Character.  —  Bad  charac- 
ter is  not  admissible  to  show  a  disposition  to  do  a 
particular  thing,  but  may  sometimes  be  ofl'ered  to 
throw  light  on  a  motive.  ^^ 

When  character  is  not  itself  in  issue,  evidence 
of  bad  character  can  never  be  introduced  by  the 
prosecution  until  the  prisoner  has  opened  the  way 
by  producing  evidence  of  his  own  good  character.  ^^ 
So  the  fact  that  the  defendant  was  an  ex-convict, 
having  been  imprisoned  before,  was  not  competent 
evidence  against  him,  he  not  having  introduced 
evidence  in  support  of  his  good  character.  ^'^  But  if 
the  accused  takes  the  stand  in  his  own  behalf,  his 
reputation  for  veracity  may  be  attacked  just  the 
same  as  that  of  any  other  witness.  ^^ 

§  239.     Character    Evidence    must    be    General.  — 

Evidence  as  to  character  must  be  contined  to  general 

reputation,    and   must   not   touch    upon    particular 

acts.  2^     And,  as  a  general  rule,  evidence  as  to  char- 
is  People   V.  McLaughlin,    150   X.   Y.  3G5 ;    Wright   v. 

State,  108  Ala.  60. 

19  State  V.  Lapage,  57  N.  II.  245;  People  v.  White,  U 

Wend.  (N".  Y.)  Ill;  People  v.  Fair,  43  Cal.  137;  State  r. 

Hull,  18  R.  I.  207;    Young  v.   Com.,  6  Bush    (Ky.),  312; 

State  V.  Creson,  38  Mo.  372  ;  Reg.  v.  Rowton,  10  Cox  C.  C. 

(Eng.)  25. 

2°  People  V.  White,  supra  cit. 

21  Com.  V.  O'Brien,  119  Mass.  .342. 

2"^  Com.  V.  O'Brien,  supra  cit. ;  Com.  v.  Harris,  131  Mass. 

336;   Stalcup  v.   State,   146   Ind.  270;    State   v.   McGee,  81 

Iowa,  17;  Evans  c.  State,  109  Ala.  11;  Garner  v.  State,  28 


138  THE    LAW    OF    ARREST 

acter,  when  admissible  in  criminal  cases,  is  to  be 
contined  to  the  particular  trait  in  question. ^^ 

§  240.     Good    Character  is   always   Admissible.  — 

Good  character  may  be  shown  Ijy  the  prisoner  to  es- 
tablish the  improbability  of  his  having  committed 
the  crime  with  which  he  is  charged,  and  it  may  be 
such  strong  evidence  as  to  create  a  reasonable  doubt 
in  the  face  of  overwhelming  facts  of  guilt. ^* 

§  241.  Nature  of  Character  Evidence.  —  Evidence 
to  prove  character  may  be  by  the  testimony  of  those 
who  know  the  character  of  the  party,  or  by  the  repu- 
tation which  the  party  bears  in  the  community,  or 
by  particular  conduct.  And  as  the  character  of  a 
man  is  subject  to  a  change,  it  is  very  material  that 
character  evidence  relate  to  the  time  near  when  the 
crime  charged  was  committed. 

§  242.     Conduct     as     Evidence     of    Guilt.  —  It    is 

competent  evidence  against   the    prisoner   that   he 

Fla.  113;  Basye  i'.  State,  45  Neb.  261;  State  v.  Lapage,  57 
N.  n.  245  ;  Hirschman  v.  People,  101  111.  574. 

23  Clark  V.  Brown,  116  Mass.  504. 

24  People  V.  Van  Dam,  107  Mich.  425;  Cora.  v.  Wilson, 
152  Mass.  12;  Cora.  v.  Leonard,  140  Mass.  473;  Aneals  v. 
People,  134  111.  401 ;  Hall  v.  State,  132  Ind.  317 ;  Stewart  v. 
State,  22  Ohio  St.  477  ;  State  v.  Schleagel,  50  Kan.  325  ; 
State  ('.  Douohoo,  22  W.  Va.  761 ;  Pariish  v.  Cora  ,  81  Va. 
1 ;  State  c  Ward,  73  Iowa,  532  ;  Gib.soii  v.  State,  89  Ala. 
121;  Uardtke  v.  State,  67  Wis.  552;  Edgington  v.  U.  S., 
164  U.  S.  361. 


EVIDENCE   TO   ESTABLISH    THE    OFFEN'CE         139 

was  silent  when  charged  with  the  crime, ^^  or  that 
he  destroyed  evidence  of  his  guilt, ^^  or  marks  of 
ownership, 2^  or  that  he  took  to  flight,-^  conceal- 
ment, or  disguise,-'-*  or  attempted  to  stiHe  investiga- 
tion, or  possessed  the  fruits  of  his  crime, ^*^  or  that 
there  are  unexplained  suspicious  appearances,  or 
that  he  attempted  to  commit  the  same  crime  at 
another  time,  or  that  he  used  communicated 
threats.  ^^ 

§  242  a.     Possession  of  Stolen  Goods  as  Evidence. 

—  When  a  theft  has  been  committed,  and,  immedi- 
ately after  the  commission  of  the  crime,  the  stolen 
property  is  found    in  possession  of   the  party  sus- 

25  Rex  V.  Smithies,  5  C.  &  P.  (Eng.  X.  P.)  332 ; 
Ackerson  v.  People,  124  111.  572  ;  People  v.  McCrea,  32 
Cal.  98  ;  Franklin  v.  State,  69  Ga.  36.  Contra :  Cora.  r. 
McDermott,  123  Mass.  440;  Com.  v.  Walker,  13  Allen  (Mass.), 
570  ;  Com.  v.  Kenney,  12  Mete.  (Mass.)  235. 

26  So.  P.  R.  Co.  r.  Johnson,  44  U.  S.  App.  1. 

27  Wilson  V.  U.  S.,  162  U.  S.  613. 

28  State  V.  Frederic,  69  Me.  400;  State  v.  Rodman,  62 
Io^^•a,  456;  Bell  v.  State,  115  Ala.  25;  Sewell  v.  State,  76 
Ga.  836. 

2«  Com.  V.  McMahon,  145  Pa.  St.  413;  State  r.  Bradneck, 
09  Conn.  212;  Com.  v.  Brigham,  147  Mass.  414. 

«o  Goon  Bow  v.  People,  160  111.  438  ;  AVilson  v.  U.  S., 
supra  cit. 

81  Ward  I'.  State,  30  Tex.  App.  687;  Ford  r.  State,  112 
Ind.  373;  People  v.  Duck,  01  Cal.  387;  Painter  r.  People, 
117  111.  462;  Griffin  r.  State,  90  Ala.  596;  Liiiehan  v.  State, 
113  Ala.  70;  Brooks  v.  Com.,  100  Ky.  194  ;  State  i:  Edwards, 
34  La.  1012;  State  v.  McKinney,  31  Kan.  570. 


140  THE   LAW   OF   ARREST 

pected  of  the  theft,  it  is  prima  facie  evidence  of 
the  guilt  of  the  person  in  whose  possession  the 
property  is  found,  and  unless  other  circumstances 
surrounding  the  case  serve  to  create  a  reasonable 
doubt,   is  sufficient  to  convict.^ 

And  if  the  finding  of  the  property  in  the  posses- 
sion of  the  accused  is  immediately  after  the  com- 
mission of  the  offence,  it  is  almost  conclusive 
evidence  of  his  guilt ;  but  the  presumption  of  guilt 
weakens  as  time  elapses.  ^^ 

Although  the  unexplained  possession  of  property 
may  sometimes  justify  an  arrest  on  suspicion,  the 
defendant  is  never  bound  at  his  trial  to  explain 
the  possession  of  recently  stolen  property,  because 
the  burden  of  proving  the  offence  beyond  a  rea- 
sonable doubt  is  on  the  prosecution.  2* 

§  243.  Intoxication  as  a  Defence  vrhere  Specific 
Intent  is  Essential.  —  Voluntary  intoxication  is  no 
defence  to  a  criminal  charge.  ^^     But  where  a  specific 

*'^  Com.  V.  Randall,  119  Mass.  107;  Keating  v.  People, 
160  111.  486;  State  v.  Walker,  41  Iowa,  217;  Gablick  v. 
People,  40  Mich.  292. 

23  Gablick  v.  People,  40  Mich.  292;  Com.  v.  JNIontgomery, 
11  Mete.  (Mass.)  534;  White  v.  State,  72  Ala.  195;  Belote 
V.  State,  36  Miss.  96. 

3*  Hoge  v.  People,  117  111.  44;  State  v.  Miner,  107  Iowa, 
656;  Van  Straaten  v.  People,  26  Col.  184;  Heed  v.  State, 
25  Wis.  421 ;  Smith  v.  State,  58  Ind.  340. 

85  4  Bl.  Cora.  26;  1  Hale's  P.  C.  32;  Hopt  v.  Utah,  104 
U.  S.  631  ;  State  v.  Tatro,  50  Vt.  483 ;  Crosby  v.  People, 
137  111.  341;  Shannahau  r.  Com.,  8  Bush  (Ky.),  463;  State 


EVIDENCE  TO  ESTABLISH  THE  OFFENCE    141 

intent,  that  is,  an  intent  to  do  a  certain  thing,  is 
a  necessary  ingredient  of  the  crime  charged,  intoxi- 
cation may  be  set  up  in  defence  to  show  that  the 
specific  intent  could  not  exist.  ^^ 

For  example,  a  breaking  and  entering  of  a  dwell- 
ins-house  in  the  night-time  will  not  constitute 
burglary  unless  at  the  time  of  the  breaking  and 
entering  there  exists  a  specific  intent  to  commit 
a  felony  therein,  and  the  intoxication  may  be 
of  such  a  degree  as  to  negative  the  existence  of 
this  specific  intent. 

§  244.     Confession    by     Intoxicated    Person.  —  A 

confession  made  by  a  party  who  is  so  intoxicated 
as  not  to  understand  it,   is  not  admissible.^" 

§  245.  Confession,  if  not  Voluntary,  is  Inadmissi- 
ble. —  A  confession  of  the  prisoner  is  not  admissible 
as  evidence  unless  it  was  voluntarily  made,  and  was 

V.  West,  157  ]Mo.  309;  Conley  v.  Com.,  98  Ky.  125;  People 
V.  Miller,  lU  Cal.  10;  Colee  r.  State,  75  Ind.  511;  Rex  r. 
Carroll,  7  C.  &  P.  (Eng.  X.  P.)  U5. 

36  Rex  r.  Pitman,  2  C.  &  P.  (Eng.  N.  P.)  423 ;  Com. 
V.  Ilageulock,  140  JNIass.  125;  Crosby  v.  People,  137  111. 
342 ;  Schwabacher  v.  People,  165  111.  629 ;  Com.  v.  Dorsey, 
103  Mass.  412;  State  v.  Garvey,  11  Minn.  154;  Warner  r. 
State,  56  N.  J.  L.  686;  Lancaster  v.  State,  2  Lea  (Tenn.), 
575;  State  v.  Fiske,  63  Conn.  388;  Jenkins  v.  State,  93  Ga.  1  ; 
Pigman  v.  State,  14  Ohio,  555;  Cline  v.  State,  43  Ohio  St. 
332;  Hopt  v.  Utah,  104  U.  S.  631;  People  r.  Walker,  38 
Mich.  156;  Englehardt  v.  State,  88  Ala.  100;  People  v. 
Young,  102  Cal.  411. 

87  Com.  I'.  Howe,  9  Gray  (Mass.),  110. 


142  THE   LAW   OF    ARREST 

not  inspired  by  influence  of  hope  or  fear.^*^  And 
the  burden  as  to  voluntary  character  of  the  confes- 
sion is  on  the  prosecution.^^  If  the  confession  was 
obtained  by  any  promises,  or  threats,  of  some  one  in 
authority  over  the  accused,  it  is  not  admissible. 

So  where  a  police  oflticer  arrested  the  defendant 
for  larceny  from  the  person,  he  said  to  him  :  "  If 
you  will  get  the  money  it  will  not  be  used  as  evi- 
dence against  you ;  I  want  to  get  back  the  money.  " 
On  the  next  day  the  defendant  confessed  to  another 
police  officer.  It  was  held  that,  although  the  state- 
ments of  the  second  officer  were  admissible,  the 
refusal  of  the  judge  at  the  trial  for  the  offence  to 
instruct  the  jury  that  they  ought  to  give  no  weight 
to  the  confession,  if  they  thought  it  was  made  under 
the  influence  of  the  inducements,  gave  the  defend- 
ant a  good  ground  of  exception.**^ 

If  an  officer  should  say  to  the  accused,  "  You  had 
better  tell  the  truth, "  or,  "  You  had  better  tell 
about  it,"  any  confession  given  by  the  accused 
thereafter  would  be  incompetent ;  because  such  lan- 
guage would  naturally  convey  to  the  mind  of  the 
accused  that  he  would  gain  some  advantage  if  he 
confessed  his  guilt.  On  the  other  hand,  if  the  offi- 
cer merely  asked  the  prisoner  to  tell  the  truth,  this 

88  Com.  V.  Culver,  126  Mass.  464;  Com.  v.  Burroughs, 
162  Mass.  513. 

89  Hopt  V.  Utah,  110  U.  S.  587;  Roesel  i;.  State,  62  N.  J. 
216 

"  Cora.  V.  Cullen,  111  Mass.  435. 


EVIDENCE   TO    ESTABLISH    THE   OFFEN'CE         143 

would  not  imply  that  the  officer  promised  any  ad- 
vantage if  he  confessed,  and  a  confession  resultant 
therefrom  would  be  admissible.*^ 

And  a  confession  procured  by  artifice,  deception,  or 
falsehood,  if  otherwise  competent,  is  admissible. '^''^ 

To  exclude  the  confession,  the  promise  of  favor 
must  have  been  made  by  one  in  authority,*^  and 
respecting  punishment  for  the  crime  charged;**  and 
the  promise  must  have  been  relied  on  in  making 
the  confession. 

§  246.  Entire  Confession  must  go  in.  —  When  a 
confession  is  introduced  as  evidence,  the  entire 
confession  must  go  in,*^  and  it  is  always  open  to 
explanation  by  the  accused,*''  for  the  doctrine  of 
estoppel  does  not  apply  in  criminal  cases. *'^ 

§  247.  Collateral  Evidence  obtained  by  Confes- 
sion is  Admissible.  —  Althougli  a  confession  obtained 
by  improper   means  is  not  admissible    against  the 

"  Com.  V.  Preece,  140  Mass.  27G ;  Flagg  r.  People,  40 
Mich.  706;  Robinson  r.  People.  159  TU.  119:  State  v.  Day, 
5.0  Vt.  .o70.  Contra  :  State  v.  Bradford,  loO  Mo.  91 ;  State  v. 
Komstoll,  61  Pac.  Rep.  (Kan.)  80."). 

42  Burton  v.  State,  107  Ala.  108;  State  v.  Phelps,  74  Mo. 
136;  Andrews  v.  People,  117  111.  201;  People  r.  Barker,  60 
Mich.  277;  Osborn  v.  Com.,  14  Ky.  L.  246;  Heldt  v.  State, 
20  Xeb   492. 

48  Com.  V.  Kiiapp,  10  Pick.  (Mass.)  477. 

"  State  !'.  Tatro,  50  Vt.  48:5. 

4^  People  V.  Gelabert,  39  Cal.  6f33. 

"  State  V.  Brown,  1  Mo.  App.  86. 

*'  State  I'.  Hutchinson,  00  Iowa,  478. 


144  THE   LAW    OP   ARREST 

accused,  yet  any  collateral  evidence  obtained  by 
means  of  the  confession  may  be  used  against  the 
prisoner.*^  As  where,  by  promise  of  favor,  a  con- 
fession was  obtained  which  disclosed  the  stolen 
property  located  in  the  bed  of  the  prisoner,  the 
confession  was  inadmissible,  but  the  fact  that  the 
property  was  found  in  the  possession  of  the  pris- 
oner is  admissible.''^ 

§  248.  Criminal  Act  and  Criminal  Intent  must  be 
Concurrent.  —  To  constitute  a  crime,  it  is  necessary 
that  there  exist  in  the  mind  of  the  accused  a 
criminal  intent  at  the  very  time  when  he  does  the 
criminal  act,  —  that  is,  the  act  and  the  intent  must 
co-exist, 

§  249.  Criminal  Capacity  of  Children.  —  The  law 
conclusively  presumes  that  a  child  under  the  age 
of  seven  years  cannot  entertain  a  criminal  intent, 
and  therefore  can  never  be  guilty  of  a  crime.  ^'^  A 
child  between  the  ages  of  seven  and  fourteen  years 
is  only  prima  facie  incapable  of  committing  a  crime, 
that  is,  the  presumption  that  the  child  has  not  the 
criminal   capacity  may   be   rebutted  by  proof  that 

48  Com.  V.  Knapp,  9  Pick.  (Mass.)  496;  Williams  v. 
Com.,  27  Gratt.  (Va.)  997;  Gates  v.  People,  14  111.  437; 
White  i\  State,  3  Heisk.  (Tenn.)  338;  Duffy  v.  People,  26 
N.  Y.  588;  People  v.  Barker.  60  Mich.  277. 

49  Pvex  V.  Warickshall,  1  Leach  C.  C.  (4th  ed.)  263 ;  State 
V.  Graham,  74  N.  C.  646. 

60  People  I'.  Townsend,  3  Hill  (X.  Y.),  479 ;  4  Bl.  Com. 
23 ;  1  Hale's  P.  C.  27. 


EVIDENCE    TO    ESTABLISH    THE    OFFENCE         145 

he  is  capable  of  forming  the  necessary  criminal  in- 
tent. ^^  In  case  of  a  crime  charged  against  one 
under  fourteen  years  of  age,  the  burden  of  proof  is 
on  the  prosecution  to  show  that  the  party  so  charged 
has  the  capacity  of  forming  a  criminal  intent,  that 
is,  of  entertaining  a  guilty  knowledge  that  he  was 
doing  wrong.  °^ 

§  250.  Dying  Declarations.  —  A  statement  made 
by  one  who  believes  himself  to  be  in  a  dying  con- 
dition, by  reason  of  the  solemnity  of  the  occasion 
and  the  disposition  of  the  injured  party  to  speak 
the  truth  at  that  time,^^  is  very  weighty  evidence 
concerning  the  inflicting  of  the  wound  which  caused 
the  homicide,  or  the  circumstances  connected  there- 
with.^ Such  statements  are  called  "  dying  declara- 
tions," and  may  be  either  oral  or  written,  or  even 
by  signs.  ^^ 

51  Com.  V.  Mead,  10  Allen  (Mass.),  398;  Aiigelo  v. 
People,  9(3  111.  209;  State  v.  Tice,  90  Mo.  112;  State  v. 
Adams,  70  Mo.  355  ;  State  v.  Fowler,  52  Iowa,  103 ;  Godfrey 
V.  State,  31  Ala.  323;  State  v.  Aaron,  4  N.  J.  L.  231. 

6-  Reg.  i:  Smith,  1  Cox  C.  C.  (Eng.)  260. 

53  Rex  c.  Drummond,  1  Leach  C.  C.  (4th  ed.)  337;  Peo- 
ple V.  Olmstead,  30  Mich.  431. 

"  Scott  V.  People,  03  111.  508;  Wroe  v.  State,  20  Ohio 
St.  460;  State  v.  Garrand,  5  Oreg.  210;  State  v.  Shdton,  47 
N.  C.  364  ;  Savage  v.  State,  18  Fla.  909  ;  State  v.  R.-ed,  137 
Mo.  125;  State  v.  Pearce,  50  Minn.  220;  Starr  v.  Com.,  97 
Ky.  193;  People  v.  Davis,  56  N.  Y.  103;  Sullivan  r.  State, 
1(»2  Ala.  135;  Bryant  v.  State,  80  Ga.  272;  Ex  parte 
Fatheree,  3t  Tex.  Or.  594;  Puryear  r.  Cora.,  83  Va.  51. 

55  Com.  V.  Casey,  11  Cush.  (Mass.)  417 j  Mockabee  v. 
10 


146  THE   LAW   OF   ARREST 

§  251.  Condition  of  the  Declarant.  —  The  party 
making  such  declaration  must  be  in  apprehension 
of  immediate  death,  and  without  hope  of  recovery,^ 
and  death  must  eventually  occur,  although  the  fact 
that  the  death  does  not  occur  as  soon  as  expected, 
will  not  render  the  declaration  inadmissible.^^ 

§  252.  Competency  of  the  Declarant.  —  The  dec- 
laration must  have  been  made  by  one  who,  if  living, 
would  be  a  competent  witness  in  court. ^^  So  the 
dying  declaration  of  a  child  four  years  of  age  was 
held  to  be  incompetent.^^ 

§  253.  Best  Evidence  Only  is  Competent.  — 
Whenever  evidence  to  establish  a  crime  is  given, 

Com.,  78  Ky.  382;  Daughdiill  v.  State,  113  Ala.  7;  State 
V.  Somuier,  33  La.  239. 

66  Com.  V.  Roberts,  108  Mass.  296;  Com.  i-.  Bishop,  165 
Mass.  148;  Simons  v.  People,  150  111.  73;  State  v.  Wilson, 
121  Mo.  434;  Archibald  v.  State,  122  Ind.  122;  Vanghan  v. 
Com.,  86  Ky.  431;  State  v.  Baldwin,  79  Iowa,  714;  State 
V.  Daniel,  31  La.  91;  Com.  v.  Mika,  171  Pa.  St.  273;  Cole 
V.  State,  105  Ala.  76 ;  Whittaker  v.  State,  79  Ga.  87. 

5'  Com.  V.  Ilaney,  127  Mass.  455;  State  r.  Reed,  53  Kan. 
767;  People  v.  Weaver,  108  ]\Iich.  649;  State  r.  Craine,  120 
N.  C.  601;  People  v.  Chase,  79  Hun  (N.  Y.),  296;  Moore  v. 
State,  96  Tenn.  209;  White  v.  State,  HI  Ala.  92;  Evans  v. 
State,  58  Ark.  47;  Radford  v.  State,  33  Tex.  Cr.  520. 

68  Rex  V.  Pike,  3  C.  &  P.  (Eng  N.  P.)  598;  State  v. 
Ah  Lee,  8  Oreg.  214;  Rex  v.  Drummond,  1  Leach  C.  C. 
(Eng.)  4th  ed.  337;  State  v.  Elliott,  45  Iowa,  486;  People  v. 
Sanford,  43  Cal.  29. 

63  Rex  V.  Pike,  supra  cit. 


EVIDENCE  TO    ESTABLISH    THE   OFFENCE         147 

it  must  be  the  best  eviJeuce  obtainable,  and  any 
evidence  which  presupposes  better  evidence  will  be 
rejected.  Therefore  one  may  not  ordinarily  testify 
to  what  another  person  has  said,  because  the  party 
originally  making  the  statement  was  not  under 
oath  or  subject  to  a  cross-examination. 

And  then,  too,  it  would  be  better  evidence  if  from 
the  lips  of  the  person  who  made  the  original  state- 
ment, for  the  party  who  heard  the  statement  might 
not  have  correctly  understood  it  But  the  sole 
reason  for  the  rejection  of  such  testimony  is  that 
the  party  was  not  under  oath  or  open  to  cross- 
examination. 

§  254.  Doubt  Alvrays  goes  to  Benefit  of  Accused. 
—  In  all  cases  of  doubt  arising  in  the  criminal  law, 
the  benefit  of  the  doubt  should  be  given  to  the  ac- 
cused, ^"^  and  that  too  whether  the  doubt  arises  upon 
a  construction  of  the  law  applicable  to  the  case,  or 
upon  the  evidence  of  the  guilt  of  the  prisoner. 

§  255.  Ignorance  of  Law.  —  It  is  a  maxim  of  the 
law  that  "  Ignorance  of  the  law  excuses  no  one. "  ^^ 
There  seems,  however,  to  be  one  exception  to  that 
rule,  in  that  where  a  person  takes  proi)erty  under 
such  circumstances  that  it  amounts  to  larceny,  he 
is  not  guilty  of  larceny  if  he  took  it  under  a  bona 

«o  O'Xeil  r.  State,  48  Ga.  66. 

^1  Thoinjisou  V.  State,  20  Tex.  App.  94 ;  U.  S.  v.  An- 
thony, 11  Blatchf.  (U.  S.)  200. 


148  THE   LAW   OF   ARREST 

fide  belief  that  it  was  his  own,  even  though  the 
mistake  was  one  of  the  law  governing  ownership.  "^^ 

So  where  A.  had  set  snares  on  the  land  of  B. ,  and 
a  servant  of  B. ,  finding  the  snares  with  an  entrapped 
pheasant  in  one  of  them,  appropriated  them  under 
authority  of  a  statute,  to  the  use  of  his  master. 
A. ,  finding  the  servant  had  appropriated  the  snares 
and  pheasant,  forcibly  compelled  the  servant  to  give 
them  up,  under  the  belief  that  they  remained  his 
property.  Held,  no  robbery,  because  his  bona  fide 
impression  that  he  was  only  getting  his  own  prop- 
erty showed  that  the  animus  furandi,  — the  intent 
to  steal,  necessary  to  a  robbery,  was  not  present.  ^^ 

And  where  the  defendant  lent  the  father  of  the 
plaintiff  two  hundred  dollars,  and  took  his  note 
therefor,  payable  on  demand,  with  interest,  and  the 
father  died,  leaving  the  note  unpaid,  the  son  appro- 
priated all  the  property  of  his  deceased  father  to 
his  own  use,  taking  out  no  letters  of  administration. 
Subsequently  while  the  son  was  counting  money  in 
the  presence  of  the  defendant,  the  defendant  seized 
the  money,  saying,  "  that  she  had  a  right  to  it ;  that 
she  had  been  looking  for  it  for  a  long  time,  and  now 
she  had  got  it ;  that  the  old  man  owed  her,  and  now 
it  was  time  for  her  to  get  her  own. "     Held,  that 

6^  Com.  V.  Stebbins,  8  Gray  (Mass.),  495 ;  Com.  v.  Doane, 
1  Cush.  (Mass.)  5;  State  v.  Holmes,  17  Mo.  379:  Dye  v. 
Cora.,  7  Gratt.  (Va.)  662;  People  v.  Husband,  36  Mich.  306; 
Eex  V.  Hall,  3  C.  &  P.  (Eng.  N.  P.)  409. 

63  Rex  V.  Hall,  supra  cit. 


EVIDENCE   TO   ESTABLISH   THE   OFFENCE        149 

the  instruction  to  the  jury,  that  the  defendant  was 
not  guilty  of  larceny  if  she  took  the  money  under 
an  honest  belief  that  she  had  a  legal  right  to  take 
it,   was  clearly  correct.*^* 

6*  Com.  V.  Stebbius,  8  Gray  (Mass.)  495. 


150  THE   LAW   OF   ARREST 


CHAPTER   XII 
EXEMPTION   FROM  ARREST 

§  256.     Sovereigns  and  Diplomatic  Agents.  —  The 

law  of  nations  protects  the  sovereign  of  a  friendly 
foreign  country  and  his  retinue  of  servants  from 
arrest  while  passing  through  or  sojourning  tempo- 
rarily in  our  country.  ^  The  law  also  protects  his 
ambassador  or  other  diplomatic  agent  sent  by  him 
to  this  country, 2  and  this  protection  is  not  ex- 
tended to  the  person  alone  of  such  functionary,  but 
to  his  secretary,  attendants,  and  retinue,  his  couriers 
and  domestic  servants  as  well.  ^     Neither  he  nor  his 

1  Wheaton's  Int.  Law,  6th  ed.  143,  146. 

2  Dupont  V.  Pichon,  4  Dall.  (U.  S.)  321 ;  Woolsey  Int. 
Law,  135.  The  remedy  against  a  diplomatic  agent  who 
transgresses  the  criminal  laws  so  as  to  affect  individuals 
only,  is  to  demand  his  recall,  and  if  the  demand  be  refused, 
to  expel  him  from  the  country.  If,  however,  the  crime 
affect  the  safety  of  the  government,  the  government  may,  if 
necessary  to  its  safety,  seize  and  hold  him  until  the  danger 
be  passed,  or  forcibly  expel  him  from  the  country.  7  Op. 
Atty  -Gen.  (U.  S.)  367. 

8  U.  S.  V.  Lafontaine,  4  Cranch  (U.  S.  C.  C),  173; 
Lockwood  V.  Coysgarne,  3  Burr.  (Eng.  K.  B.)  1676;  Inglis 
V.  Sailors  Snug  Harbor,  3  Pet.  (U.  S  )  99;  Respublica  v.  De 
Longchamps,  1  Dall.  (Pa.)  111.  Although  the  secretary  of 
a  minister  is  included,  the  wife  of  the  secretary  is  not  ex- 
empt.    English  V.  Caballero,  3  D.  &  R.  (Eng.  K.  B.)  25. 


EXEMPTION    FROM    ARREST  151 

are  subject  to  the  civil  or  criminal  processes  of  our 
courts. 

A  foreign  minister  cannot  waive  his  privilege, 
because  it  is  that  of  his  sovereign ;  and  an  attache 
of  a  foreign  legation  is  a  "minister."*  The  fact 
that  the  officer  did  not  know  him  to  be  such  is 
no  excuse  for  the  arrest.'^ 

But  this  immunity  from  arrest  does  not  prevent 
a  citizen  of  our  country  from  exercising  the  usual 
rights  of  self-defence  when  attacked  by  such  ex- 
empted person.^ 

§257.  Commercial  Agents. — Consuls.  —  Consul- 
generals  are  exempt,'  but  consuls  are  not,^  they 
being  mere  commercial  agents,  owing  a  temporary 
allegiance  to  the  State,  and  not  diplomatic  agents, 
who  owe  no  allegiance  to  the  State. 

§  258.  Attorneys  at  Law.  —  Among  others  who 
are  exempt  from  civil  arrest  only,  are  attorneys  at 
law  while  attending  court.  ^     But  the  privilege  of 

*  U.  S.  V.  Benner,  Baldwin  (U.  S.  C.  C),  234. 
s  Ibid.     But  see  Chase  r.  Fish,  16  Me.  132. 

6  U.  S.  V.  Ortiga,  4  Wash.  (U.  S.  C.  C.)  531. 
"  Marshall  v.  Critico,  9  East  (Eng.  K.  B.),  447.     Contra: 
Com.  V.  Kosloff,  5  S.  &  R.  (Pa.)  545. 

*  Com.  V.  Kosloff,  supra  eit. 

®  Secor  V.  Bell,  18  Johns.  (N.  Y.)  52.  In  Georgia  it  is 
held  that  this  rule  of  the  common  law  never  obtained  in 
America,  owing  to  the  essential  difference  in  the  n-lations 
which  the  profession  sustains  both  to  the  courts  and  the 
public  in  England  and  this  country.  Elam  v.  Lewis,  19  Ga. 
608. 


152  THE   LAW   OF   ARREST 

attorneys  is  not  so  much  for  their  benefit  as  it 
is  for  the  benefit  of  their  clients, ^^  and  is  there- 
fore confined  to  attorneys  who  practice.  ^^ 

§  259.  Other  Exemptions.  —  So  also  are  bail  ex- 
empt while  attending  court  as  such  ;  ^^  a  petitioning 
bankrupt  attending  before  commissioners  to  be  ex- 
amined ;^^  insolvent  debtors  lawfully  discharged,^* 
—  but  not  when  sued  on  subsequent  liabilities  or 
promises  ;^^  clergymen  while  performing  divine  ser- 
vice, or  going  to  or  returning  from  the  performance 
of  such  service  on  any  day  of  the  week;^*^  militia 
men  on  military  duty,^"  except  commissioned  offi- 
cers under  certain  circumstances ;  ^^  electors  while 
attending,  or  going  to  or  returning  from  a  public 
election ;  ^^   jurors   attending   court  j^*^   sheriffs  and 

10  Gardner  v.  Jessop,  2  Wils.  (Eng.  C.  P.)  44 ;  Mayor  of 
Norwich  ^^  Berry,  4  Burr.  (Eng.  K.  B.)  2113;  Wiltshire  v. 
Lloyd,  3  Doug.  (Eng.  K.  B.)  381. 

11  Goldsmith  v.  Baynard,  2  Wils.  (Eng.  C.  P.)  232; 
Mayor  of  Xorwich  v.  Berry,  supra  cit. 

12  Rimmer  v.  Green,  1  Maule  &  S.  (Eng.  K.  B.)  638. 

13  In  re  Kimball,  2  Ben.  (U.  S.)  38. 

1*  Wilmarth  v.  Burt,  7  Mete.  (Mass.)  257 ;  Rev.  Laws  of 
Mass.  c.  163,  §  95. 

15  Horton  v.  Moggridge,  6  Taunt.  (Eng.  C.  P.)  563; 
Glazier  v.  Stafford,  4  Harr.  (Del.)  240. 

1^  Bacon's  Abr.  (Trespass). 

"  Peoi^le  V.  Campbell,  40  N.  Y.  133;  In  re  Turner,  119 
Fed.  Rep.  (U.  S.)  231 ;   Rev.  Laws  of  Mass.  c.  16,  §  174. 

18  Ex  parte  Harlan,  39  Ala.  563. 

19  Swift  V.  Chamberlain,  3  Conn.  537. 

20  Ex  parte  McNeil,  3  Mass.  288. 


EXEMPTION    FROM    ARREST  153 

other  peace  officers  while  actually  engaged  in  the 
performance  of  their  duties, ^^  but  not  at  other 
times, 22  except  by  statute. ^^ 

§  260.  Government  Employees.  — An  employee  of 
the  United  States  government  is  not  exempt  from 
arrest  on  process  issued  by  a  State  court  on  a  charge 
of  felony.  24 

And  the  driver  of  a  wagon  in  which  the  mail  is 
being  carried  is  not  exempt  from  arrest  for  driv- 
ing through  a  crowded  street  at  a  dangerous  rate  of 
speed,  by  the  Act  of  Congress  prohibiting  the  stop- 
page of  the  mails.  25 

§261.  Lsgislators. — Members  of  Congress,  and 
State  legislators,  while  attending  their  respective 
assemblies,  or  going  to  or  returning  from  the  same, 
are  protected  from  arrest  on  all  charges  except  trea- 
son, felony  or  "  breach  of  the  peace, "  which  latter 
term  includes  all  indictable  offences. 2'^ 

This  protection  to  members  of  Congress,  is  given 
by  the  Constitution  of  the  United  States, 2"  and  that 
of  the  members  of  the  State  legislatures  is  gener- 
al Welby  V.  Beard,  Taylor  (Up.  Can.),  415. 

22  Coxson  V.  Doland,  2  Daly  (X.  Y.),  06. 

28  "A  sheriff  shall  not  be  arrested  upon  mesne  process, 
or  execution  in  a  civil  action."  Rev.  Laws  of  Mass.  c.  23, 
§10. 

^■i  U.  S.  r.  Kirby,  74  U.  S.  482. 

25  U.  S.  V.  Hart,  Peters  (U.  S.  C.  C),  390. 

20  Rawlins  v.  Ellis,  IG  Mees.  &  W.  (Eng.  Exch.)  172. 

27  Const.  U.  S.  Art.  1,  §  G. 


154  THE   LAW   OF   ARREST 

ally  secured  to  them  by  the  constitutions  of  the 
various  States,  ^^^  or  by  the  common  law.  A  member 
of  a  house  of  representatives  who  has  been  expelled 
by  that  body  is  no  longer  entitled  to  the  protec- 
tion ;29  nor  is  one  entitled  to  protection  who  has 
merely  been  elected,  but  who  has  not  yet  taken  his 
seat.^ 

§  262.     Exemption  may  not  always  be  "Waived.  — 

Exemption  from  arrest  is  usually  a  personal  privi- 
lege ^^  which  may  be  waived  by  the  privileged 
person.  ^^  The  privilege  of  a  legislator,  however,  is 
not  his  personal  privilege,  but  is  that  of  the  people 
whose  representative  he  is,  therefore  the  privilege 
cannot  be  waived  by  him.  ^^ 

By  the  same  line  of  reasoning,  an  attorney  could 
not  waive  his  privilege,  for  the  privilege  is 
really  that  of  his  client,  whose  interests  would  be 
imperiled. 

§  263.  Writ  of  Protection.  —  A  writ  of  protec- 
tion is  only  ^^nma  facie  proof  of  exemption  from 

28  Hiss  V.  Bartlett,  3  Gray  (Mass.),  468.  "No  member 
of  the  house  of  representatives  shall  be  arrested  or  held  to 
bail  on  mesne  process,  during  his  going  unto,  returning  from, 
or  his  attending  the  general  assembly."  Const.  Mass.  c.  1, 
§  3,  Art.  10. 

'^  Hiss  V.  Bartlett,  supra  cit. 

30  Chase  v.  Fish,  16  Me.  132. 

81  Smith  V,  Jones,  76  Me.  138. 

32  Brown  v.  Getchell,  11  Mass.  11. 

33  Anderson  v.  Roundtree,  1  Finn.  (Wis.)  115.  But  see 
Chase  I'.  Fish,  supra  cit. 


EXEMPTION   FROM    ARREST  155 

arrest,  and  is  of  itself  no  further  useful  than  as  it 
serves  to  give  notice  to  the  officer  about  to  make 
the  arrest.^* 

§  264  Parties  attending  Court.  —  This  writ  is 
not  necessary  to  one  whose  duty  brings  him  to 
court,  in  order  that  he  may  be  shielded  from  arrest 
in  a  civil  case.  If  a  juror  or  any  other  person 
whose  duty  brings  him  to  court,  whether  as  a  party 
or  as  a  witness,  is  arrested  while  attending  the 
court,  or  in  going  to  or  returning  from  the  court, 
the  court  will,  upon  motion,  take  order  for  his  dis- 
charge.^^ Such  arrest  is  a  contempt  of  court, ^  and 
may  subject  the  party  making  the  arrest  to  a  prose- 
cution for  the  offence.  But  this  protection  does  not 
extend  to  one  who  comes  to  court,  in  his  own  State, 
as  a  volunteer,  without  summons.^"  A  voluntary 
witness,  however,  from  another  State  is  protected, ^^ 
although  no  witness  in  attendance  at  court  is  privi- 
leged from  arrest  when  charged  with  an  indictable 
ofi'ence.  ^^ 

81  Ex  parte  Daniel  McXeil,  6  :\rass.  264. 

35  The  case  of  Archibald  .McNeil,  3  Mass.  2S7;  Ex  parte 
Archibald  IMcXeil,  6  Mass.  245;  Wood  v.  Neale,  5  Gray 
(Mass.),  538  ;  Thompson's  Case,  122  Mass.  428. 

86  Blight  v.  Fisher,  Pet.  C.  C.  (U.  S.)  41  ;  Wood 
V.  Neale,  5  Gray  (Mass.),  5:j8  ;  State  r.  Buck,  62  X.  H. 
670. 

8''  Ex  parte  Datiiel  McXeil,  supra  cit. 

88  May  V.  Shumway,  16  Gray  (Mass.),  86. 

89  Ex  parte  Levi,  28  Fed.  Rep.  (U.  S.)  651. 


156  THE   LAW   OF    ARREST 

§  265.  "Waiver  of  Privilege  by  Parties  attending 
Court.  —  The  immunity  from  arrest,  enjoyed  by 
one  who  is  attending  court  as  a  party  to  a  proceed- 
ing then  pending,  being  a  personal  privilege,  may 
be  waived,  as  by  submission  to  arrest ;  and  the 
arrested  party  cannot  afterward  object  to  the  im- 
prisonment as  for  that  reason  unlawful.*^  But  a 
witness  from  another  State,  arrested  before  he  has 
completely  given  his  testimony,  does  not  waive  his 
privilege  of  exemption  from  arrest  by  giving  bail.  *^ 

§  266.  Persons  under  Guardianship.  —  A  spend- 
thrift, under  guardianship,  is  exempt  from  arrest 
on  execution  issued  for  debt  or  damages  in  a  civil 
action,  whenever  the  statute  requires  an  affidavit  to 
be  made  that  the  party  sought  to  be  arrested  has 
been  guilty  of  one  of  the  fraudulent  or  wasteful 
acts  specified  in  the  statute, ^^  because  the  property 
of  the  debtor  is  not  under  his  own  control,  but 
under  that  of  his  guardian,  consequently  he  could 
not  be  guilty  of  fraud  in  not  applying  it  to  the  debt, 
and  he  may  be  discharged  on  habeas  corpus. 

Where  no  affidavit  is  required  by  the  statute  to 
warrant  an  arrest  on  an  execution,  it  has  been  held 
that  a  hmatic  under  guardianship  might  be  so 
arrested.  *^ 

40  Brown  v.  Getchell,  11  Mass.  11. 
*i  Dickinson  v.  Farwell,  71  N.  H.  213. 

42  Blake's  Case,  106  Mass.  501. 

43  Ex  parte  Leighton,  14  Mass.  207. 


EXEMPTION   FROM   ARREST  157 

§  267.  OfiEcer  not  liable  for  arresting  Exempted 
Party.  —  An  officer  who  acts  according  to  his  precept 
in  making  an  arrest,  is  not  a  trespasser,  although 
the  party  arrested  is  privileged  from  arrest.** 

§  268.  Exemption  may  include  Going  to  and  Com- 
ing from  a  Certain  Place.  —  The  exemption  from  ar- 
rest in  consideration  of  a  certain  character  and 
specified  place,  includes  the  stay,  and  a  reasonable 
time  for  going  and  returning,*^  but  does  not  include 
delays  or  deviations.*^  So  where  a  party  exempted 
from  arrest  by  reason  of  attendance  at  court,  went 
out  of  a  direct  route  on  his  return  home,  for  the 
purpose  of  attending  the  funeral  of  his  son,  it  was 
held  that  his  privilege  was  forfeited  by  the  devia- 
tion.*' But  where  a  voter  at  a  public  election  had 
given  in  his  vote,  and  retired  to  a  house  in  the 
neighborhood  to  await  the  result  of  the  official 
count  of  the  votes,  it  was  held  that  he  was  attend- 
ing to  the  business  of  the  election,  and  therefore 
exempt  from  arrest  on  civil  process.*^  If  an  elector 
has  not  actually  proceeded  on  his  way  to  tlie  voting- 
place,  but  is  merely  preparing  to  go,  he  cannot  claim 
the  privilege.*^ 

A  person  who  was  alleged  to  have  been  elected  to 

"  Cliase  V.  Fish,  16  Me.  132. 

45  Sniythe  i-.  Banks,  4  Dall.  (U.  S.)  329. 

*^  Chaffee  v.  Jones,  19  Pick.  (Mass.)  260. 

*'  Ibid. 

48  Swift  V.  Chamberlain,  3  Conn.  537. 

«  Ilobbs  V.  Getchell,  8  Me.  Ibl. 


158  THE    LAW   OF   ARREST 

Congress,  having  been  denied  a  seat  by  that  body, 
is  privileged  from  arrest  until  he  reaches  his  home, 
and  any  delay  by  reason  of  sickness  or  want  of  funds 
does  not  remove  the  privilege.  ^° 

§  269.  Debtors  from  Another  State.  —  Under  a 
statute  authorizing  the  arrest  of  a  debtor  on  the 
ground  that  he  is  about  to  leave  the  State  to  avoid 
the  payment  of  his  debts,  some  courts  hold  that  it 
is  only  a  citizen  of  the  State  in  which  the  arrest  is 
made,  and  in  which  the  debt  exists,  that  is  subject 
to  arrest,^^  and  that  a  citizen  of  another  State  is 
exempt  from  such  arrest ;  while  other  courts  hold 
that  the  statute  extends  to  a  debtor  who  is  a  citizen 
of  another  State,  but  who  is  temporarily  within  the 
State  where  he  owes  the  debt,  returning  or  intend- 
ing to  return  home,  as  well.  ^^ 

§  270.  Statutory  Exemptions.  —  Exemptions  from 
arrest,  other  than  those  hereinbefore  specified,  such 
as  women,  mariners,  and  others  in  certain  cases,  are 
sometimes  made  by  statute.  ^^ 

50  Dunton  v.  Halstead,  2  Pa.  L.  J.  "Rep.  450. 

51  Stevenson  v.  Smith,  28  N.  H.  12 ;  McKay  v.  Ray,  63 
N.  C.  46. 

52  Tallemon  v.  Cardenas,  14  La.  Ann.  509  ;  Rutland  Bank 
V.  Barker,  27  Vt.  293. 

53  "  No  woman  shall  be  arrested  on  mesne  process,  except 
for  tort.  No  person  shall  be  arrested  on  mesne  process  in  a 
civil  action  for  slander  or  libel."  Rev.  Laws  of  Mass.  c.  168, 
§  3.  See  Foss  v.  Ilildreth,  10  Allen  (Mass.),  76,  holding 
that  a  threat  to  make  an  arrest  for  slander  is,  under  the  stat- 


EXEMPTION    FROM   ARREST  159 

When  a  statute  names  a  sheriff  only,  as  exempt 
from  arrest  under  civil  process,  the  protection  does 
not  extend  to  a  deputy  sheriff.^* 

ute,  a  threat  to  make  an  unlawful  arrost.  "  A  seaman  who 
has  shipped  or  entered  into  a  contract  for  a  voyage  from  a 
port  in  this  Commonwealth  shall  not  be  liable  to  arrest  on 
mesne  process  on  account  of  a  debt  to  a  landlord  or  boarding 
house  keeper."  Rev.  Laws  of  Mass.  c.  66,  §  4.  A  slieriff  is 
exempt,  by  Rev.  Laws  of  Mass.  c.  23,  §  10,  from  arrest  at 
any  time  on  mesne  process  or  execution  in  a  civil  action. 
'54  George  v.  Fellows,  58  N.  II.  ¥Ji. 


160  THE   LAW   OF   ARREST 


CHAPTEE   XIII 
FALSE   IMPRISONMENT 

§  271.  Definition.  —  Any  unlawful  restraint  of 
a  person  contrary  to  his  will,^  either  with  or  with- 
out process  of  law,  is  a  false  imprisonment,^  and 
makes  the  restraining  offender  liable  to  the  State  in 
a  criminal  action,  and  to  the  imprisoned  one  in  a 
civil  action. 

§  272.     Restraint  must  be  against  the  Will.  —  The 

restraint  must  be  without  the  consent  of  the  im- 
prisoned party,  and  a  child  of  tender  years  may  not 
be  able  to  give  such  consent  as  will  make  the  im- 
prisonment lawful.^ 

§  273.  Restraint  must  be  Total.  —  The  restraint 
must  be  a  total  one.  Compelling  a  man  to  go  in  a 
given  direction  against  his  will  may  amount  to  an 
imprisonment,  and  if  it  is  an  entire  restraint,  there 
certainly  is  an  imprisonment.  So  if  an  officer  com- 
mands a  person  to  go  with  him,  and  the  orders  are 

^  Com.  V.  Nickerson,  5  Allen  (Mass.),  51S. 
2  Comer  v.  Kiiowles,   17  Kau.  436;  Brewster  v.  People, 
183  Til.  146. 

^  Com.  V.  Nickerson,  supra  cit. 


FALSE   IMPRISONMENT  IGl 

obeyed,  and  they  go  in  the  direction  pointed  out 
by  the  officer,  that  is  an  imprisonment,  though  no 
actual  violence  be  used,  and  though  there  is  not 
even  a  touching  of  the  person ;  it  is  enough  that 
there  is  a  complete  control  of  the  person's  liberty, 
and  a  submission  by  him. 

But  restraining  a  man  from  going  in  a  particular 
direction,  at  the  same  time  leaving  one  direction 
open  and  free  for  him  to  go  if  he  choose,  does  not 
constitute  an  imprisonment,  because  there  is  no 
total  restraint  of  his  freedom.* 

§  274.  Restraint  may  be  by  Words.  —  In  ordinary 
practice,  words  are  sufficient  to  constitute  an  im- 
prisonment, if  they  impose  a  restraint  upon  the 
person,  and  the  party  is  accordingly  restrained ;  for 
he  is  not  obliged  to  incur  the  risk  of  personal  vio- 
lence and  insult  by  resisting  until  actual  violence 
be  used.  This  principle  is  reasonable  in  itself, 
and  is  fully  sustained  by  the  authorities. 

§  275.  Having  in  Power  is  sufficient.  —  Nor  does 
there  seem  that  there  shoulu  be  any  very  formal 
declaration  of  arrest.  If  the  officer  goes  for  the  pur- 
pose of  executing  his  warrant,  has  the  party  in  his 
presence  and  power,  if  the  party  so  understands  it, 
and  in  consequence  thereof  submits,  and  the  officer, 
in  the  execution  of  the  warrant,  takes  the  party  be- 
fore a  magistrate,  or  receives  money  or  property  in 

4  Bird  V.  Jones,  7  Q.  B.  (Eng.)  742. 
U 


162  THE   LAW    OF   ARREST 

discharge  of  his  person,  it  is  in  law  an  arrest, 
although  he  did  not  touch  any  part  of  the  body.^ 

§  276.     Touching  not  Necessary  to  complete  Offence. 

—  It  is  not  necessary  to  constitute  false  imprison- 
ment that  the  person  restrained  of  his  liberty  should 
be  touched  or  actually  arrested.  If  he  is  ordered  to 
do  or  not  to  do  the  thing,  to  move  or  not  to  move 
against  his  own  free  will,  —  if  it  is  not  left  to  his 
option  to  go  or  stay  where  he  pleases,  and  force  is 
offered,  or  there  is  reasonable  ground  to  apprehend 
that  coercive  measures  will  be  used  if  he  does  not 
yield, ^  the  offence  is  complete  upon  his  submission. 

A  false  imprisonment  may  be  committed  by  words 
alone,  or  by  acts  alone,  or  by  both,  and  by  merely 
operating  on  the  will  of  the  individual,  or  by  per- 
sonal violence,  or  both.  It  is  not  necessary  that 
the  individual  be  confined  within  a  prison  or  within 
walls,  or  that  he  be  assaulted  or  even  touched.^ 

It  may  be  committed  by  threats,^  but  it  is  not 
necessary  that  it  be  a  malicious  act,  or  that  the 
slightest  wrongful  intention  exist.  ^ 

§  277.     Must   be   a   Threat   or   Show   of  Force.  — 

Proof  that  the  defendant  induced  the  plaintiff'  to  go 

5  Pike  r.  Hanson,  9  N.  II.  491. 

«  Johnson  v.  Tompkins,  1  Baldwin  (U.  S.  C.  C),  571. 
^  Comer  v.  Knowles,  17  Kan.  435. 

8  Hen-ins  v.  State,  3  Tex.  App.  108;  Meyer  v.  State,  49 
S.  W.  (Tex.)  600. 

®  Comer  v.  Knowles,  supra  cit. 


FALSE   IMPRISONMENT  163 

to  another  place,  and  there  remain  in  concealment 
for  a  time,  by  threats  of  a  criminal  prosecution 
and  misrepresentations,  but  without  using  or  threat- 
ening to  use  force,  is  not  suthcient  to  maintain  the 
action.  ^'^ 

§  278.  Warrant  valid  in  Form,  from  Court  of  General 
Jurisdiction,  protects  Officer.  —  As  a  general  rule,  to 
secure  immunity  from  liability,  the  officer  is  bound 
only  to  see  that  the  process  wliich  he  is  called  upon 
to  execute  is  in  due  and  regular  form,  and  issues 
from  a  court  having  general  jurisdiction  of  the  sub- 
ject. In  such  case  he  is  justified  in  obeying  his 
precept.  And  it  is  highly  necessary  to  the  due, 
prompt,  and  energetic  execution  of  the  commands 
of  the  law  that  he  should  be  so.  ^^ 

Therefore  an  officer  who  has  an  execution  from 
a  court  of  competent  jurisdiction  is  not  liable  for 
arresting  a  defendant  who  shows  his  discharge  in 
insolvency  to  the  officer  before  he  is  arrested.  ^^ 

An  officer  cannot  stop  to  try  the  validity  of  such 
a  certificate  of  discharge  when  he  is  about  to  serve 
a  legal  process,  and  to  so  hold  would  defeat  the 
service. 

§  279.  Serving  Lavrful  Process  Improperly.  —  Serv- 
ing lawful  process  in  an  unauthorized  manner  con- 
stitutes false  imprisonment.^^ 

^o  Payson  v.  Maconiber,  o  Allen  (Mass.),  69. 
"  McMahan  v.  Green,  :34  Vt.  09. 
i'^  Wilmarth  v.  Burt,  7  Mete.  (Mass.)  257. 
^^  Wood  V.  Graves,  li-t  Mass.  3G5. 


164  THE  LAW   OP   ARREST 

A  person  who  causes  another  to  be  arrested  on 
mesne  process  in  a  civil  action  is  liable  to  an  action 
of  false  imprisonment,  if  he  fails  to  first  make  an 
affidavit  that  is  required  by  statute.  ^^ 

If  an  arrest  under  a  lawful  warrant  be  made  for 
the  purpose  of  extorting  money,  or  to  unlawfully 
enforce  the  payment  of  a  civil  claim,  an  action  of 
false  imprisonment  will  lie  against  all  who  have, 
either  directly  or  indirectly,  participated  therein.  ^^ 
But  procuring  a  warrant  by  misrepresentations  does 
not  make  the  party  so  procuring  the  warrant  liable 
to  an  action  for  false  imprisonment.-'^  Nor  does 
legally  enforcing  the  payment  of  a  debt  by  means 
of  an  arrest,  constitute  the  offence.  ^'^ 

On  an  execution  against  a  corporation,  styled  the 
president,  directors,  and  company  of  a  turnpike, 
the  officer  was  held  liable  for  the  arrest  and  deten- 
tion of  one  of  the  proprietors ;  because  the  party 
arrested  was  neither  named  nor  described  in  the 
writ,  the  corporate  name  not  being  the  name  or  de- 
scription of  any  natural  person  whomsoever,  there- 
fore he  did  that  which  his  precept  did  not  authorize 
him  to  do,  when  he  made  the  arrest.  ^^ 

1*  Cody  V.  Adams,  7  Gray  (Mass.),  59. 

^5  Hackett  v.  King,  6  Allen  (Mass.),  58;  Vanderpool  v. 
State,  34  Ark.  174 ;  Slomer  v.  People,  25  111.  61  ;  Neufeld  r. 
Rodeminski,  144  111.  88. 

i«  Coupal  V.  Ward,  106  Mass.  289. 

"  Mullen  V.  Brown,  138  Mass.  114. 

18  Nichols  V.  Thomas,  4  Mass.  232. 


FALSE   IMPRISONMENT  165 

§  280.  Discharging  Prisoner  without  taking  before 
Magistrate.  —  To  arrest  a  man  for  being  drunk  and 
disorderly,  and  then  discharge  hira  without  taking 
him  before  a  magistrate,  constitutes  the  offence,  un- 
less the  prisoner  waived  his  right  to  be  so  taken,  by 
consenting  to  the  discharge.  ^^ 

§  281.  Subsequent  Arrest  for  OfiFence  committed  in 
Presence  of  Officer.  —  ^Yhere  an  otticer  arrests  an  in- 
toxicated person,  while  guilty  of  disorderly  conduct, 
and  releases  him  on  his  promise  to  go  directly  home, 
he  may  lawfully  retake  him,  on  his  going  into  a  bar- 
room before  he  is  out  of  the  officer's  sight,  and  is 
not  guilty  of  false  imprisonment  in  so  doing ;  and 
it  makes  no  difference  whether  the  final  restraint  be 
considered  a  recaption,  or  a  new  arrest  for  disorderly 
conduct  still  continuing. ^o 

§  282.  Imprisoned  Party  must  be  Conscious  of  Re- 
straint. —  To  constitute  an  imprisonment,  the  party 
imprisoned  must  be  conscious  of  the  restraint.  ^^ 
So  where  a  schoolmaster,  improperly,  and  under  a 
claim  for  money  due  for  schooling,  refused  to  allow 
the  mother  of  an  infant  scholar  to  take  her  son 
home  with  her,  and  the  son,  though  frequently  de- 
manded  by  the  mother,   was    kept   at  the  school, 

"  Brock  V.  Stimson,  108  iMass.  520. 

20  Com.  V.  Hastings,  9  Mete.  (Mass.)  202. 

21  Herring  v.  Boyle,  1  Cronip.  ^[.  &  11.  (Eng.  Exch.)  377. 


166  THE   LAW   OF   ARREST 

there  being  no  proof  that  the  boy  knew  of  the 
demand  and  denial,  or  that  any  restraint  had  been 
imposed  upon  him,  it  was  held,  when  he  brought 
an  action  for  false  imprisonment,  that  it  was  not 
maintainable.  ^^ 

22  Herring  v.  Boyle,  1  Cromp.  M.  &  R.  (Eng.  Exch.)  377. 


TRESPASS  167 


CHAPTER  XIV 

TRESPASS 

§  283.  Definition.  —  A  trespass  is  any  misfeas- 
ance, —  that  is,  the  doing  of  a  lawful  act  in  an  un- 
lawful manner, —  or  act  of  one  man  whereby  another 
is  injuriously  treated  or  damaged,^  either  in  his 
person,  his  property,  or  his  rights.  And  a  tres- 
passer has  been  defined  to  be  one  who  does  an  un- 
lawful act,  or  a  lawful  act  in  an  unlawful  manner, 
to  the  injury  of  the  person  or  property  of  another. ^ 

§  284.  Trespass  vi  et  Armis-  —  A  trespass  com- 
mitted with  force,  as,  for  example,  striking  another 
unlawfully,  is  said  to  be  done  vi  et  armis  (with 
force  and  arms). 

§  285.  Accidental  Acts.  —  As  the  ground  of  com- 
pensation is  the  injury  done,  a  civil  action  lies  for 
an  unintentional  act  of  trespass,  even  if  there  is  no 
malice;^  but   not  always  for  an   accidental   act.* 

1  3  Bl.  Com.  208. 

2  Bouvier's  Law  Diet.  (Trespasser). 

8  Bigelow  V.  Stearns,  19  Johns.  (X.  Y.")  38. 

*  Brown  v.  Kendall,  G  Cash.  (Mass.)  1*02;  Vincent  r. 
Stinehour,  7  Vt.  62 ;  Ilobart  v.  Ilagget,  12  Me.  67;  Blewitt 
1-.  Phillips,  1  Q.  B.  (Eng.)  86. 


168  THE   LAW   OF   ARREST 

Such  accidental  act,  however,  will  not  excuse  a 
trespass,  unless  the  act  be  unintentional,  unavoid- 
able, and  without  the  least  fault  on  the  part  of  the 
trespasser,  ^ 

§  286.   Criminallntent  Necessary  to  Criminal  Action. 

—  But  a  criminal  action  for  trespass  does  not  lie 
unless  the  trespass  be  done  with  a  criminal  intent,^ 

—  that  is,  an  intent  to  commit  a  crime.  A  criminal 
intent  does  not  necessarily  mean  that  a  knowledge 
of  wrong  doing  must  exist,  for  it  has  been  held  that 
a  mere  knowledge  of  the  facts  of  the  case  will  sup- 
ply this  intent;'^  and  it  is  immaterial  whether  the 
person  who  committed  the  offence  knew  that  it  was 
in  violation  of  the  law. 

§  287.  OflBcer  not  Chargeable  -with  Errors  of  Magis- 
trate. —  An  officer  is  never  liable  for  the  regular  en- 
forcement of  legal  process  which  contains  errors 
made  by  the  issuing  magistrate,  provided  the 
process  is  regular  on  its  face.^ 

§  288.  Unauthorized  Entrance  of  OfiBcer  is  at  his 
Peril.  — An  officer  armed  with  civil  process,  who 
enters  upon  premises  without  invitation  of  the  oc- 
cupant thereof,  who  has  done  no  act  to  induce  the 
olficer  to  reasonably  believe  that  the  party  whom  he 

^  Jennings  v.  Fundeburg,  4  McCord  (S.  C),  161. 
6  Bessey  v.  Olliott,  T.  Raym.  (Eng.  K.  B.)  467. 
T  U.  S.  V.  Anthony,  11  Blatchf.  (U.  S.  C.  C.)  200. 
8  Stutsman  County  v.  Wallace,  142  U.  S.  293. 


TRESPASS  169 

seeks  to  serve  is  there,  is  a  trespasser,  if  the  person 
whom  he  seeks  is  uot  a  resident  there,  or  there  in 
fact.  9 

§  289.  Statutory  Authority  must  be  foUov^ed 
Strictly.  —  An  officer  who  makes  an  arrest  by  au- 
thority of  a  statute,  must  follow  the  statute  strictly, 
or  he  becomes  a  trespasser.  As  where  an  officer 
arrests  an  intoxicated  person  under  authority  of  a 
statute  which  provides  that  the  officer  shall  take  the 
arrested  person  "  before  some  justice  of  the  peace, 
or  police  court  in  the  city  or  town  wherein  he  has 
been  found,  and  shall  make  complaint  against  him 
for  tlie  crime  of  drunkenness,"  is  guilty  of  trespass 
if  he  takes  him  before  a  justice  in  another  town,^^ 
if  there  is  a  justice  in  the  town  where  he  is 
found,  or  if  he  releases  him  without  taking  him 
before  a  justice  at  all.  ^^  And  an  officer  is  never 
liable  for  an  act  done  under  the  authority  of  a 
constitutional  statute ;  ^^  otherwise  if  the  statute  is 
unconstitutional. 

§  290.  Arrest  for  Intoxication.  —  If  an  officer, 
without  a  warrant,  arrests  a  person  for  being  in- 
toxicated, he  does  so  at  his  peril ;  that  is,  if  the 
person  so  arrested  is  not   in  fact  intoxicated,   the 

9  Blatt  V.  McBarron,  161  Mass.  21. 

10  Papineau  >:  Bacon,  110  Mass.  319. 

"  Brock  V.  Stimson,  108  Mass.  520;  State  v.  Tarker,  75 
N.  C.  249. 

"  Brown  v.  Beatty,  34  ^liss.  227. 


170  THE   LAW    OF   ARREST 

officer  is  guilty  of  trespass,  for  nothing  but  clear 
proof  of  the  intoxication  will  justify  the  arrest. 
The  fact  that  the  arrest  was  made  in  good  faith, 
and  under  a  reasonable  belief  of  the  intoxication, 
will  not  excuse  the  trespass.  ^^  And  it  is  imma- 
terial how  the  intoxication  was  produced.^*  But  an 
officer  is  not  liable  criminalUj  for  arresting  a  person 
who  is  subsequently  shown  not  to  have  been  intoxi- 
cated at  the  time  of  the  arrest. -^^ 

§  291.  Liability  of  Party  assisting  an  OfBcer.  — 
There  seems  to  be  some  doubt  whether  a  private 
person  who,  at  the  command  of  an  officer,  assists 
him  in  making  an  arrest,  is  guilty  of  trespass,  if  the 
process  in  the  hands  of  the  officer  is  not  regular  and 
valid.  The  cases  which  hold  that  the  private  per- 
son called  upon  under  such  circumstances  is  not 
liable,  seem  to  be  founded  upon  the  better  reasoning. 
It  is  certainly  neither  law  nor  accurate  reason- 
ing to  assume  that  a  person  upon  whom  the  per- 
formance of  a  duty  is  thrown  by  law,  as  it  is  when 
a  known  officer  commands  assistance  in  making  an 
arrest,  and  who  is  subject  to  a  criminal  prosecution 
if  he  does  not  obey  the  command  of  the  law,^^  is 

13  Phillips  V.  Fadden,  125  Mass.  198. 

1*  Com.  V.  Coughliii,  123  Mass.  436. 

15  Com.  V.  Cheney,  141  Mass.  102.  But  see  State  v. 
Hunter,  106  N.   C.  796. 

i«  Coyles  V.  Hurtiu,  10  Johns.  (N.  Y.)  84;  Watson  v. 
State,  83  Ala.  60;  Dougherty  v.  State,  106  Ala.  63;  T^Ic- 
Mahan  v.  Green,  34  Vt.  69  ;  Pruitt  v.  Miller,  3  lud.  16;  Fire- 
stone v.  Rice,  71  Mich.  377. 


TRESPASS  171 

not  fully  protected  by  the  law  in  the  performance  of 
that  duty. 

A  fair  statement  of  the  law  applicable  in  such 
cases  would  seem  to  be,  that  one  who,  at  the 
command  of  an  officer,  assists  him  in  the  execu- 
tion of  legal  process,  is  fully  protected,  although 
the  process  is  not  regular  and  valid ;  but  if  he  acts 
of  his  own  volition,  he  must  show  that  the  process 
is  valid,  in  order  to  justify  his  act.^" 

But  where  the  original  act  of  the  officer  is  wrong- 
ful in  itself,  as  it  would  be  if  the  officer,  without  a 
warrant,  were  to  arrest  one  for  a  past  misdemeanor, 
any  stranger  who  aids  him  in  it  will  be  liable  to 
the  party  injured,  although  he  acts  by  the  officer's 
command. 

§  292.  Bystander  may  be  justified  in  not  Respond- 
ing.—  A  bystander  is  nt)t  obliged  to  respond  to 
an  officer's  command  of  assistance  unless  there 
is  a  reasonable  necessity.  He  may  also  set  up 
physical  impossibility  or  other  lawful  excuse  in 
defence.  ^'^ 

"  Reed  v.  Rice,  2  J.  J.  Marshall  (Ky.),  44;  State  v.  Stal- 
cup,  1  Ired.  (N.  C.)  30 ;  McMahau  v.  Green,  34  Vt.  69 ;  Fire- 
stone V.  Rice,  71  Mich.  377  ;  Watson  v.  State,  83  Ala.  60. 
Contra:  Elder  v.  ]\Iorrison,  10  Wend.  (N.  Y.)  128;  Hooker 
V.  Smith,  19  Vt.  151 ;  Mitcliell  v.  State,  12  -Vrk.  50;  Dietriclis 
V.  Schaw,  43  Ind,  175.  See  also  Dehm  c,  llinman,  56  Conn. 
320. 

1*  Reg.  V.  Brown,  Car.  &  M.  314 ;  State  v.  Deniston,  G 
Blackf.  (Ind.)  277. 


172  THE   LAW   OF   ARREST 

§  293.     Unlawful   Arrest  ordered   by  Third   Party. 

■ —  An  unlawful    arrest  ordered   by  a  third   person 
makes  such  person  liable  in  damages.  ^^ 


Trespass  ab  Initio. 

§  294.     Arises  from  Abuse  of  Legal   Authority.  — 

An  officer  who  in  serving  civil  process,  or  making 
a  civil  arrest,  does  any  act  which  he  has  no  right  to 
do,  or  does  an  act  in  an  unlawful  manner  which  he 
might  be  justified  in  doing  if  he  did  it  in  a  lawful 
manner,  becomes  thereby  a  trespasser  ab  initio  (from 
the  beginning) ;  that  is,  every  act  in  connection  with 
the  service  of  the  process  which  was  lawful  when 
done,  by  doing  that  single  unlawful  act,  becomes 
thereby  unlawful. ^^  But  the  officer's  assistant  is 
not  affected  by  a  subsequent  abuse  of  process.  ^^ 
The  entry  must  be  by  authority  of  law,  or  the 
officer  cannot  become  a  trespasser  ah  initio.  The 
subsequent  act,  however,  will  not  make  the  officer 
a  trespasser  ah  initio,  unless  it  shows  a  purpose  to 
use  his  legal  entry  as  the  cover  for  the  wrong- 
ful act,  or  unless  the  subsequent  wrongful  act 
is  in  itself  a  trespass. 


22 


19  King  V.  Ward,  77  111.  603;  Taafe  v.  Slevin,  11  Mo. 
App.  507. 

20  Cora.  V.  Tobin,  108  Mass.  426. 

21  Oystead  v.  Shed,  12  Mass.  505;  Wheel ock  v.  Archer,  26 
Vt.  380". 

22  Shorland  v.  Govett,  5  B.  &  C.  (Eiig.  K.  B.)  485. 


TRESPASS  173 

§  295.  Application  of  the  Doctrine.  —  The  doc- 
trine of  trespass  ah  initio  does  not  apply  to  crim- 
inal cases. '"^^  Nor  does  it  apply  when  the  entrj'  is 
by  permission  of  the  party,  as  where  an  officer  enters, 
not  by  authority  of  law,  but  by  permission  of  the 
party,  and  then  wrongfully  takes  possession  of 
certain  papers ;  there  the  original  entry  was  not  a 
trespass.  -* 

23  Com.  V.  Tobin,  108  Mass.  426. 

2*  Allen  V.  Crofutt,  5  Wend.  (N.  Y.)  506. 


INDEX 

[References  are  to  sections.  ] 

A. 

AFFIDAVIT, 

is  necessary  to  civil  arrest,  107. 

what  must  be  stated  m  the,  107 

new,  is  necessary  if  writ  is  altered,  108. 

failure  to  make  may  be  cause  of  action,  279. 
ALTERING   WARRANT, 

effect  of,  108. 

may  be  done  only  by  issuing  magistrate,  48. 
AMBASSADORS     (See  Minister,  Consuls), 

or  attendants  cannot  be  arrested.  256. 
ARREST     (Sf-e  Officer,  Prisoner,  Warrant,  Process, 
Restraint,  Sunday,  False  I.mprisonment,  Tres- 
pass), 

what  constitutes,  65. 

requisites  of  legal,  66. 

made  in  four  ways,  20. 

officer  must  make  known  his  authority  to,  78. 

authority  to,  may  be  known  by  circumstances,  85. 

by  known  officer  is  notice  of  authority,  81. 

authority  and  duty  to,  are  coincident,  183. 

constructive  notice  of  authority  to,  85. 

under  general  autliority,  146. 

want  of  authority  to,  will  not  protect  prisoner  from  pros- 
ecution, 14,  15. 

may  not  be  made  on  Sunday  in  civil  case,  47,  76. 

for  vagrancy,  142. 

for  conspiracy  may  be  on  Sunday,  261. 

on  criminal  charge  may  be  at  any  time,  76. 


176  INDEX 

[References  are  to  sections.] 

ARREST  ~  Cotithmed. 

in  criminal  case  may  be  made  anywhere,  77. 

importance  of  consummation  of  the  arrest,  68. 

may  be  by  words  alone,  66,  73. 

touching  may  be  necessary  to,  69,  73. 

consummated  by  touching,  though  accused  flee,  74. 

restraint  always  necessary  to,  73. 

taking  into  custody  necessary  to,  71,  73. 

force  in  making,  183,  185-188. 

killing  in  making,  86,  92,  144,  145,  183,  184,  187-189. 

in  wanton  and  menacing  manner,  86. 

right  to  kill  when  fleeing  from,  144,  145,  189. 

without  warrant,  112  et  seq. 

without  warrant  when  one  is  required,  6. 

for  violation  of  city  ordinances,  131. 

without  warrant  for  breach  of  peace  must  be  immediate, 

141,  142. 
for  breach  of  peace,  76,  116. 
by  private  person  for  breach  of  peace,  116. 
by  officer  for  breach  of  peace,  129. 
while  committing  breach  of  the  peace,  116,  141,  142, 
in  case  of  misdemeanor,  by  private  person,  116. 
in  case  of  felony,  by  private  person,  112,  155. 
bail  may  arrest  principal  without  warrant  anywhere, 

148. 
with  warrant  is  preferable,  20. 
with  warrant,  90  et  seq. 
cannot  be  of  party  not  named  or  described  in  warrant, 

90,  279. 
may  be  an  old  warrant  not  returned,  35. 
under  lawful  warrant  for  improper  purpose,  279. 
mere  reading  warrant  is  not  sufficient  to  constitute,  67. 
officer  may  be  acting  in,  though  at  distance,  75. 
by  officer  outside  of  jurisdiction,  135. 
within  house  by  officer  outside,  158. 
may  be  by  officer's  assistant,  75. 
duty  to  submit  to  illegal,  by  known  officer,  92. 
may  be  by  excepting  alternative,  72. 


INDEX  177 

[References  are  to  sections.] 
ARREST  —  Contmued. 

ill  night,  76. 

in  different  county,  49. 

on  reasonable  suspicion,  129. 

for  contempt  of  court,  64. 

for  contempt  of  legislative  body,  63. 

to  prevent  crime,  149. 

for  fraud,  137. 

in  civil  cases,  103-111. 

statute  authorizing  civil,  104. 

officer's  duty  after  making,  87. 

exemption  from,  256  et  seq. 
ASSISTANCE, 

private  person  may  be  entitled  to,  113. 

criminal  offence  to  refuse  officer,  291. 

defences  to  charge  of  refusing  officer,  292. 
ASSISTANT, 

arrest  may  be  by,  75. 

of  officer  may  be  liable,  95. 
AUTHORITY     (See  Notice), 

notice  of,  to  arrest,  78,  81. 

to  arrest  may  be  known  by  circumstances,  85. 

officer  must  make  known,  to  arrest,  78. 

constructive  notice  of,  to  arrest,  85. 

arrest  under  general,  146. 

and  duty  to  arrest  are  coincident,  183. 

in  writing  bail  may  delegate,  to  arrest,  148. 

burden  of  proof  to  show,  to  arrest,  235. 


B. 

BAIL, 

excessive,  shall  not  be  required,  5. 

one  under,  in  extradition  has  no  opportunity  to  leave 

State,  220. 
in  writing  may  delegate  authority  to  arrest  principal.  148. 
may  arrest  principal  without  warrant  anywhere,  148. 
may  break  doors  to  arrest  principal,  148. 
12 


178  INDEX 

[References  are  to  sections.] 

BEXCn   WARRANT, 

what  is  a,  26. 

purpose  of  the  term,  26. 

BILL   OF   RIGHTS, 

American,  6. 
English,  5. 

BREACH   OF   THE   PEACE, 

what  is,  117. 

essence  of  the  offence,  119. 

includes  all  indictable  offences,  261. 

arrest  for,  76,  116. 

arrest  while  committing,  116,  141,  142. 

arrest  for,  without  warrant,  must  be  immediate,  141, 142. 

arrest  by  private  person  for,  116. 

arrest  by  officer  foi",  129. 

entering  unfastened  door  to  arrest  for,  138. 

entering  fastened  door  to  arrest  for,  139. 

inciting  others  to  break  the  peace  is  a,  118. 

calling  names  opprobriously  may  be,  118,  125. 

no  defence  to  charge  of,  that  opprobrious  words  are  true, 
119. 

abating  nuisance  in  unlawful  manner  is,  120. 

loud  and  violent  abusive  language  is  a,  121. 

wanton  discharge  of  a  firearm  may  be,  122. 

doing  lawful  act  in  a  turbulent  manner  is  a,  120. 

threatening  officer  may  be  a,  121. 

disturbance  of  public  worship  is  a,  123. 

soliciting  by  a  prostitute  is  a,  124. 

reckless  driving  is  a,  126. 

profane  swearing  may  be  a,  127. 

shouting  in  streets  at  night  may  be  a,  126. 

pubHc  and  disorderly  drunkenness  may  be  a,  127. 

to  constitute,  must  disturb  an  indefinite  number  of  per- 
sons, 125. 

BREAKING     (See  Dook,  House), 
what  is  a,  172. 
injury  of  material  not  necessary  to  a,  173. 


INDEX  179 

[References  are  to  sections.] 
BllEAKIXG  —  Continued. 

removing  anything  relied  on  as  security,  is  a,  173,  ISO. 

when  justifiable,  144,  145,  147,  152  et  seq. 

breaking  doors,  175. 

breaking  windows,  176. 

by  making  or  entering  other  openings,  177. 

enlai'ging  opening  by  actual,  178. 

by  removing  iron  grating  over  sidewalk,  180. 

entrance  under  deception  may  be,  181. 

taking  advantage  of  negligence  of  occupant  is  not,  174, 
177. 

right  of  private  person  to  break,  155. 

bail  may  break  to  arrest  principal,  148. 

not,  to  open  inner  doors,  1G2. 

unannounced   entrance   to   make   original  arrest  is  au 
unjustifiable,  159. 

notification,  demand,  and  refusal  necessary  before,  153, 
159. 

need  not  always  give  name  of  party  sought  before,  154. 

to  prevent  escape,  157. 

effect  of  arrest  by  unlawful,  182. 
BURDEX   OF   PROOF     (.See  Evidence), 

is  with  the  prosecution,  229. 

never  shifts  from  the  prosecution,  229-231. 

as  to  new  and  distinct  proposition,  130,  131. 

in  showing  license  to  sell,  236. 

respecting  criminal  capacity  of  children,  249. 

in  insanity,  237. 

as  to  voluntary  character  of  confession,  245. 

when  charge  is  use  of  excessive  force,  233. 

on  officer  to  show  offence  committed  in  presence,  234. 

to  show  authority  to  arrest,  235. 


c. 


CHARACTER, 

good,  always  admissible,  240. 
bad,  may  be  admissible,  238. 


180  INDEX 

[References  are  to  sections.] 

CHARACTER—  Con/awefZ. 

evidence  must  be  of  general  repute,  239. 

how  proven,  241. 

at  present  time  is  of  most  importance,  241. 

evidence  must  be  of  particular  trait  in  question,  239. 
CHILDREN, 

under  seven  years  cannot  commit  crime,  249. 

between  seven  and   fourteen  years  may  be  unable  to 
commit  crime,  249. 
CLUB, 

officer's  riglit  to  use,  191,  192. 

may  use,  if  necessary  to  stop  fight,  191. 

may  not  use,  if  prisoner  merely  holds  back,  191. 

unjustified  assault  v^ith,  193. 
COMPLAIXT  {See  Oath,  Affidavit), 

required  by  constitution,  23. 

who  may  make,  53. 

need  not  be  in  writing  except  by  statute,  54. 

if  insufficient  may  render  officer  liable,  33. 
COMPLAINING   PARTY, 

may  be  a  trespasser  if  magistrate  has  no  jurisdiction,  16. 

CONFESSION, 

is  admissible  if  voluntary,  245. 

must  be  made  to  whom,  244,  245. 

must  go  in  entire,  246. 

by  intoxicated  person,  244. 

is  open  to  explanation,  246. 

although  not  admissible,  collateral  information  may  be, 
247. 
CONFINING   PRISONER, 

in  State  penitentiary,  100. 

in  unhealthful  place,  100. 

freight  car  may  be  used  for,  100. 

length  of  time  in,  195. 

force  may  be  used  in,  198. 
CONSTITUTIONAL   PROVISIONS, 

respecting  search  warrants,  23. 


INDFX  181 

[References  are  to  sections.] 

CONSTITUTIONAL   PROVISIONS  —  Con^/«»f./. 

do  not  apply  to  searches  by  State  autliorities,  23. 

respecting  description  of  arrested  party,  41. 

prohibit  physical  exaniination  by  compulsion,  203. 

respecting  rendition,  222. 

respecting  "  due  process  of  law,"  6. 

respecting  jury  trials,  6,  7. 

respecting  arrest  for  debt,  103. 

respecting  probable  cause  and  oath,  52,  57. 
CONSTITUTIONAL   RIGHT, 

to  jury  trial  cannot  be  waived,  7. 
CONSUL   GENERALS, 

are  exempt  from  arrest,  257. 
CONSULS, 

are  not  exempt  from  arrest,  257. 
CONTEMPT, 

arrest  for  contempt  of  court,  64. 

arrest  of  party  or  witness  at  court  is  a  contempt,  264. 

arrest  for  contempt  of  legislative  body,  63. 
COURT, 

arrest  in,  77,  264. 
CRIMINAL   INTENT, 

what  is  a,  2.S6. 

is  necessary  to  a  crime,  248. 

and  criminal  act  must  concur,  248. 
CUSTODY, 

taking  into,  necessary  to  arrest,  71,  73. 

D. 

DEBTOR 

arrest  of,  about  to  leave  State,  105. 

affidavit  necessary  to  arrest  of,  107,  270. 

intent  to  deiraud  necessary  to  arrest  of,  106. 

may  be  exempt  from  arrest,  2G!>. 

effect  of  altering  writ  for  arrest  of,  108. 

no  arrest  of,  after  attachment  of  property,  109. 

filing  petition  in  insolvency  after  arrest,  111. 


182  INDEX 

[References  are  to  sections.] 

DELAY, 

ill  making  an  arrest  for  a  breach  of  the  peace,  141,  142. 

in  taking  prisoner  before  a  magistrate,  96,  195. 
DESERTERS  (See  Military  Law). 
DOOR  (See  Breaking,  House), 

breaking,  175. 

breaking  in  pursuit  of  felon,  144. 

right  of  private  person  to  break,  155. 

bail  may  break  to  arrest  principal,  148. 

military  officer  may  not  break  to  arrest  deserter,  147. 

entering  unfastened,  to  arrest  for  breach  of  peace,  138. 

entering  fastened  to  arrest  for  breach  of  the  peace,  139. 

mere  protective,  is  not  legal  outer  door,  179. 

inner,  may  be  legal  outer  door,  162,  163. 

inner,  may  be  broken  on  any  process,  162. 
DOUBT, 

always  goes  to  benefit  of  the  accused,  231,  254. 

DRUNKENNESS  (See  Intoxication), 
may  be  a  breach  of  the  peace,  127. 
will  excuse  delay  in  taking  before  a  magistrate,  96. 
may  be  a  defence  to  a  criminal  charge,  243. 

DUE   PROCESS  OF  LAW, 

what  is,  6. 

constitutional  provisions  respecting,  6. 

DWELLING   HOUSE    (See  House), 
what  is  a,  164. 

to  constitute,  must  be  used  for  sleeping  purposes,  170. 
use  of,  determines  character,  165. 
use  of  portion  as,  106. 
combined  place  of  business  and,  169. 
may  be  several,  in  same  building,  167. 
public  building  may  be  a,  168. 
must  be  occupied  for  purpose  of,  165. 
effect  of  absence  on  character  of,  171. 

DYING   DECLARATIONS, 

why  admissible,  250. 

may  be  oral,  written,  or  by  signs,  250. 


INDEX  183 

[References  are  to  sections.] 

DYIXr;   DECLAIIATIOXS—  Co«//nuer/. 

party  making,  must  expect  immediate  death,  251. 
must  be  made  by  one  who,  if  living,  would  be  competent, 

2r)2. 
young  child  cannot  make,  252. 

E. 
ELECTION, 

one  going  to  or  returning  from,  is  exempt  from  civil 

arrest,  208. 
one  merely  preparing  to  go  to,  is  not  exempt,  268. 
ENDORSING    WARRANT, 

to  arrest  in  another  county,  id. 
ESCAPE, 

■what  is,  88. 

may  be  a  felony  or  misdemeanor,  89. 

accused  may  be  re-taken  on  same  warrant,  or  without 

warrant,  89. 
officer  is  responsible  for,  89,  191. 
on  void  warrant  there  cannot  be,  89. 
cannot  be  uidess  arrest  is  consummated,  68. 
innocence  or  guilt  of  party  escaping  is  not  material,  89. 
use  of  force  in  preventing,  187,  188,  194. 
in  pursuit  for,  unannounced  entrance  into  house  is  jus- 
tifiable, 160. 
breaking  into  house  to  prevent,  157. 
anything  may  be  taken  from  prisoner  that  may  be  used 
in,  200. 
ESTOPPEL, 

doctriiie  of,  does  not  apply  to  criminal  cases,  246. 
EVIDENCE      (See    Bukukx    of    Pkoof,    Confessions, 
Charactkr,  Dying  Declarations), 
conduct  as,  of  guilt,  242. 
of  character,  2:38-241. 
preponderance  is  not  sufficient,  228. 
must  not  be  obtained  by  compulsory  physical  examina- 
tion, 203. 


184  INDEX 

[References  are  to  sections.] 
EVIDENCE  —  Continuecl. 

l^risoner's  silence  weighed  against  him,  242. 

destroying  evidence,  242. 

destroying  marks  of  ownership,  242. 

of  use  of  threats,  242. 

of  taking  to  flight,  242. 

disguise,  242. 

concealment,  242. 

possession  of  stolen  goods  as,  242a. 

presumption  of  innocence  is  not,  232,  236. 

degree  of,  to  warrant  holding  in  extradition,  211. 

collateral,  obtained  by  confession  is  admissible,  247 

obtained  by  illegal  seizure  is  competent,  24a. 

best,  only  is  competent,  253. 

hearsay  evidence  not  admissible,  253. 

EXEMPTION   FROM  ARREST, 

in  general,  256  et  seq. 
ambassadors  are,  256. 

sovereign  of  friendly  foreign  nation  is,  256. 
any  diplomatic  agent  of  friendly  foreign  nation  is,  256. 
Consul  Generals  are,  257. 
consuls  are  not,  257. 
attorneys  at  law  are,  258. 
persons  under  guardianship,  266. 
bail  are,  259. 

bankrupts  are,  and  insolvents  may  be,  259. 
clergymen,  259. 
militia  men,  259. 
electors,  259. 
jurors,  259. 

sheriffs  and  other  peace  officers,  259,  270. 
employee  of  the  United  States  may  not  he,  260. 
driver  of  mail  wagon  may  not  be,  260. 
members  of  Congress,  261. 
extends  to  one  denied  seat,  268. 
State  legislators,  261. 

does  not  extend  to  expelled  or  merely  elected  member, 
261. 


INDEX  185 

[References  are  to  sections.] 
EXEMPTION   FROM    ARREST  —  Continued. 
witnesses  and  parties  to  suits,  264. 
may  usually  be  waived,  262. 
may  not  be  waived  by  attorney  or  legislator,  262. 
may  be  waived  by  a  party  to  a  court  proceeding,  265. 
voluntary  witness  is  not  exempt,  264. 
officer  is  not  liable  for  arresting  exempt  party,  267. 
includes  going  to  and  returning   from  certain  places, 

268. 
by  statute,  269,  270. 
EXTRADITION  (See  Rendition), 
and  rendition  distinguished,  204. 
definition  of,  205. 

who  may  issue  warrant  in,  207,  208. 
usual  method  of  procedure  in,  215. 
sanction  of  demand  necessary  to  give  jurisdiction,  214. 
is  matter  of  treaty  or  comity,  206,  216,  226. 
no  comity  on  part  of  United  States,  217. 
is  obligatory  between  States  of  the  United  States,  226. 
requisites  of  warrant  in,  209. 
degree  of  evidence  to  warrant  holding  in,  211. 
negotiations  in,  must  be  by  highest  executive  officers, 

214. 
guilt  or  innocence  not  inquired  into  on  habeas  corpus 

in,  213. 
re-arrest  after  discharge  on  habeas  corpus  in,  210. 
re-arrest  after  discharge  on  merits,  218. 
taking  before  a  magistrate  in,  211. 
for  what  crimes  a  fugitive  may  be  tried  in,  218,  219. 
kidnapped  fugitive  may  be  tried  for  any  offence,  219. 

F. 
FACT, 

ignorance  of,  may  excuse,  32. 

FALSE  IMPRISONMENT  (See  Arrest,  Trespass), 
definition  of,  271. 
may  be  by  mere  words,  273,  274,  276. 


186  INDEX 

[References  are  to  sections.] 
FALSE    IMPRTSOXMENT— Con^mwerf. 

must  be  against  will,  272. 

to  constitute,  there  must  be  a  total  restraint,  273. 

none  unless  party  is  conscious  of  restraint,  275,  282. 

touching  of  person  not  necessary  to,  273-276. 

there  must  be  at  least  a  threat  or  show  of  force,  277. 

may  be  by  serving  process  improperly,  279. 
FELONY  (See  Arrest,  Officer,  Private  Person), 

what  is  a,  115. 

escape  may  be  a,  89. 

arrest  for,  may  be  made  on  Sunday,  47,  76. 

killing  to  prevent,  128,  144. 

right  of  private  person  to  arrest  for,  112,  155. 

right  of  officer  to  arrest  for,  129. 

may  kill  if  necessary  in  arresting  for,  144,  145. 
FOPtCE    (.Sef?  Killing,  Club), 

use  of,  in  making  an  arrest,  183,  185-188. 

officer  is  liable  for  excessive,  190. 

may  be  used  in  confining  prisoner,  198. 

may  be  used  in  searching  prisoner,  201. 

use  of,  to  prevent  escape,  187,  188,  194. 

burden  of  proof  in  charge  of  use  of  excessive,  233. 
FRESH  PURSUIT  (See  Killing,  Breaking,  Door), 

may  justify  private  person  in  breaking  doors,  145,  155. 

on,  pursuer  may  kill  if  necessary  to  prevent  escape,  145. 
FUGITIVE  FROM  JUSTICE, 

who  is  a,  227. 

G. 

GOVERXMENT, 

limit  of  right  to  control,  9. 

H. 

HABEAS  CORPUS, 

history  of,  4. 

guilt  or  innocence  not  inquired  into  on,  213. 

re-arrest  after  discharge  under  writ  of,  210. 


INDEX  187 

[References  are  to  sections.] 

HANDCUFFS, 

when  use  of,  is  justifiable,  19i,  198. 

right  to  use,  depends  on  circumstances,  194,  108. 

right  to  use,  on  party  arrested  in  a  civil  suit,  198. 

must  not  be  used  to  join  convicted  to  unconvicted  person, 
194. 

use  of,  rests  with  discretion  of  ofBcer,  194,  198. 

may  be  used  when  a  rescue  is  expected,  194. 
HOUSE  (See  Breaking,  Door,  Dwelling  House), 

is  castle,  151. 

cannot  usually  be  broken  to  serve  civil  process,  152. 

may  be  broken  to  serve  criminal  process,  152. 

to  whom  the  protection  of,  is  extended,  150. 
HUE  AXD  cry, 

■what  is,  1.50. 

arrest  under,  is  justifiable  though  no  felony  committed, 
114. 


IGXORAXCE  OF  THE  LAW, 

is  usually  no  excuse,  31,  255. 

if  reLjarding  ownership,  may  excuse  larceny,  255. 
IMPOSSIBILITY, 

may  excuse  oflBcer  from  obeying  command  of  law,  99. 
INFANT, 

under  seven  cannot  commit  crime,  249. 

between  seven  and   fourteen  prima  facie    incapable  of 
crime,  249. 
INNOCENCE, 

presumption  of,  232,  23G. 

piesumption  has  no  weight  as  evidence,  232. 

effect  of  presumption,  232. 

when  presumption  disappears  from  case,  232. 
INTERFERENCE  (See  Resisting), 

by  third  persons  may  be  lawful,  94. 

officer  may  not  club  one  who  merely  interferes,  192. 


188  INDEX 

[References  are  to  sections.] 

INTOXICATION  (See  Drunkenness), 
may  be  a  defence,  243. 
immaterial  how  produced,  290. 
officer  arrests  for,  at  his  peril,  290. 
destroys  admissibility  of  confession,  244. 
will  not  justify  searching  the  prisoner,  202. 
■will  excuse  delay  in  taking  prisoner  before  magistrate, 
96. 

J. 

JURISDICTION  {See  Magistrate,  Process,  Warrant), 
lack  of,  if  of  person,  may  not  invalidate  process,  16. 
no  immunity  because  of  enticing  into,  14. 
obtained  by  illegal  arrest,  or  kidnapping,  14,  15. 
over  foreign  vessels,  18. 
over  ceded  territory,  19. 

statute  giving,  implies  power  to  apprehend,  59. 
officer  must  know  that  magistrate  has  general,  29. 
if  magistrate  has  none,  process  is  wholly  void,  16. 
in  absence  of,  all  parties  are  trespassers,  16. 

JURY, 

public  trial  by,  is  necessary  in  certain  cases,  6. 
trial  by,  cannot  be  waived,  7. 


K. 

KILLING  (See  Force,  Felony), 

when  justifiable  in  making  arrest,  144,  145,  183. 

Blackstone's  rule  regarding,  in  making  arrest,  184. 

if  necessary  to  arrest  in  felony,  144,  145. 

to  prevent  escape  in  felony,  187. 

to  prevent  escape  in  misdemeanor,  188. 

to  prevent  felony,  128,  144. 

in  resisting  arrest,  86,  92. 

when  fleeing  from  arrest,  144,  145,  189. 


INDEX  189 

[References  are  to  sections.] 

L. 

LIFE  (See  Killing,  Force), 

taking  of,  in  arresting,  86,  92,  128,  141,  145,  183,  187- 
189. 

M. 

MAGISTRATE  (See  Pkocess,  Warrant), 

must  follow  law  in  issuing  process,  11. 

cannot  justify  under  authority  of   an   unconstitutional 
statute,  16. 

must  have  general  jurisdiction  of  subject  matter,  16,  29. 

effect  of  lack  of  jurisdiction  in,  16. 

issuing,  need  not  have  trial  jurisdiction,  28. 

may  be  trespasser  for  acting  without  authority,  16. 

officer  is  not  chargeable  with  errors  of,  287. 

officer  should  take  prisoner  before,  96,  102. 

may  delay  in  taking  prisoner  before,  for  cause,  96. 

drunkenness  will  excuse  delay  in  taking  before,  96. 

prisoner  may  waive  his  right  to  be  taken  before,  102, 
280. 

issuing  warrant  only  may  alter  it,  48. 
MAGNA   CIIARTA, 

secured  right  of  personal  liberty,  3. 

is  written  evidence  of  right  of  personal  liberty,  3. 
MANDAMUS, 

may  lie  to  compel  justice  to  take  action,  51. 
MILITARY   LAW, 

offender  against,  must  not  be  arrested  without  warrant* 
147. 

military  officer   may   not  break  outer  door   to   arre.st 
deserter,  147. 
MINISTER   (See  Amhassador), 

foreign,  cannot  bo  arrested,  256. 

legation  attache  is  a,  256. 

foreign,  cannot  waive  privilege  of  exemption,  256. 

citizen  may  exercise  right  of  self-defence  against   for- 
eign, 256. 


190  INDEX 

[References  are  to  sections.  ] 

MISDEMEANOR, 

arrest  for,  by  private  person,  116. 
escape  may  be,  89. 
MISTAKE, 

if  clerical,  may  not  render  officer  liable,  33. 

N. 

NAME, 

of  party  or  description  is  necessary  in  warrant,  89,  45, 
279. 

use  of  fictitious,  in  warrant,  40. 

party  known  by  several  names,  43. 
NECESSITY, 

as  excuse  for  acting  or  not  acting,  101. 

what  is  "  reasonable  necessity,"  101. 
NIGHT, 

arrest  may  be  in,  76. 
NOTICE   (See  Authority), 

of  authority  to  arrest,  78,  81-85. 

need  not  be  given  to  outsiders,  84. 

0. 

OATH  (See  Complaint,  Affidavit), 

is  necessary  to  issue  of  a  warrant,  56,  57,  107,  279. 
that  oath  was  made  must  appear  on  face  of  warrant,  93. 
OFFICER   (See  Arrest,  Process,  Warrant,  Club), 
may  be  trespasser  for  lack  of  jurisdiction  in  issuing 

magistrate,  16. 
cannot  justify  act  under  unconstitutional  statute,  16. 
how  far  protected  by  warrant  valid  upon  its  face,  30. 
is  protected  by  valid  warrant,  91,  278. 
must  serve  void  warrant,  if  valid  on  its  face,  33. 
warrant  no  protection  to,  if  invalid  on  its  face,  92. 
is  protected  in  serving  void  warrant,  if  defect  is  not  on 

face,  33. 
is  charged  with  two  duties  to  secure  immunity,  29. 


INDEX  191 

[References  are  to  sections.] 
OFFICER  -  Continued. 

may  be  liable  if  complaint  is  not  sufRcient,  33. 
not  liable  for  arresting  exempted  person,  267. 
not  chargeable  with  errors  of  issuing  magistrate,  287. 
may  deputize  another  to  .serve  as  a.ssistant,  62. 
may  be  considered  as  acting  in   arrest  though  at  dis- 
tance, 75. 
assistant  of,  may  be  liable  if  officer  is,  95. 
may  command  assistance,  110. 
iimst  have  warrant  with  him  when  arresthig,  46. 
assistant  of,  may  make  arrest,  75. 
liability  of  party  assisting,  291. 
bystander  may  refuse  assistance  to,  292. 
may  sometimes  arrest  outside  of  jurisdiction,  135. 
finding  impossible  to  perform  is  excused,  99. 
when  justified  in  using  own  judgment,  101. 
must  exhibit  authority,  if  demanded,  82. 
need  not  imperil  warrant,  79. 
duty  of,  after  making  arrest,  87,  195. 
must  rely  on  name  alone  in  warrant,  40. 
one  not  a  known,  must  show  his  warrant,  82. 
effect  of  failure  to  exhibit  authority,  80. 
duty  to  submit  to  illegal  arrest  by  known,  92. 
right  of,  to  arrest  for  felony,  129. 
may  arrest  on  reasonable  suspicion  of  felony,  129. 
once  lawfully  in  house  may  re-enter  forcibly,  161. 
may  arrest  without  warrant,  129. 
unauthorized  entrance  of,  at  his  peril,  288. 
arrest  within  house  by,  outside,  158. 
is  liable  for  u.se  of  excessive  force,  190. 
right  of,  to  use  club,  191. 

may  not  u.se  club  on  one  who  merely  interferes,  192. 
unlawful  act  of,  deprives  him  of  protection  of  law,  193. 
demanding  number  of,  192. 
responsibility  for  escape,  89,  19-1. 
arrests  for  intoxication  at  his  peril,  290. 
not  liable  for  clerical  mistake,  33. 
may  be  exempt  from  arrest,  259,  270. 


192  INDEX 

[References  are  to  sections.] 

OFFICER—  Continued. 

threatening,  may  be  a  breach  of  the  peace,  121. 
right  of,  to  detain  prisoner,  98. 
right  of,  to  release  prisoner,  97,  197,  280,  281. 
when  custody  of  prisoner  ceases,  197. 


PERSONAL   LIBERTY, 

right  of,  1. 

demands  restraint,  8. 

was  secured  by  Magna  Charta,  3. 

was  strengthened  by  subsequent  acts,  4. 

is  a  natui-al  right,  2. 

no  one  to  be  deprived  of,  without  due  process  of  law,  6. 
PETITION   OF   RIGHT, 

provision  of,  4. 
PLACE   OF   ARREST, 

may  be  anywhere  on  a  criminal  charge,  77. 

POSSESSION, 

of  stolen  goods  as  evidence,  242a. 
PRESENCE, 

what  is,  134. 

burden  is  on  officer  to  show,  234. 

by  special  authority  may  arrest  for  offence  not  com- 
mitted in,  132. 
PRISONER, 

is  not  entitled  to  immunity  because  enticed  into  juris- 
diction, 14. 

officer  has  no  right  to  roughly  use  the,  186. 

must  not  be  forced  to  a  physical  examination,  203. 

right  to  search,  200. 

mere  intoxication  will  not  justify  searching,  202, 

force  may  be  used  in  confining,  198. 

must  be  confined  in  a  suitable  place,  100. 

disposing  of,  9(J. 

may  be  searched  at  time  of  arrest,  202. 


INDEX  193 

[References  are  to  sections.] 
FRISO^EU—  Continued . 
inciting,  to  resist,  192. 
right  to  take,  through  streets  naked,  199. 
taking  before  magistrate,  96,  19.5. 
may  waive  right  to  be  taken  before  magistrate,  102, 197, 

280. 
may  be  released  by  officer  without  taking  before  a  magis- 
trate. 97,  102,  197,  280. 
incapacity  of,  relieves  officer  from  taking  before  magis- 
trate at  once,  96. 
may  be  killed  if  necessary  to  prevent  escape,  187. 
may  shoot  officer  in  self  defence,  86. 
unconvicted  must  not  be  shackled  to  convicted  prisoner, 

194. 
must  be  particularly  described  on  face  of  warrant,  93. 
finding  guilty  of  lesser  offence  than  that  charged,  17. 
want  of  authority  for  arrest  will  not  protect  from  prose- 
cution, 14,  15. 
PRIVATE   PERSOX  (See  Arrest), 
arrest  by,  in  felony,  112,  155. 
arrest  by,  in  misdemeanor,  116. 

arrest  by,  for  felony  must  not  be  from  hearsay  informa- 
tion, 112. 
generally  obliged  to  go  to  officer's  assistance,  291,  292. 
may  arrest  only  when  felony  has  actually  been  com- 
mitted, 112. 
warrant  may  be  directed  to,  if  necessary,  60. 
may  be  entitled  to  assistance,  llo. 
may  arrest  without  warrant,  112,  116. 
may  use  force,  128. 

may  kill  felon  if  necessary  to  prevent  escape,  145. 
may  break  doors  on  fresh  pursuit,  145,  155. 
PROBABLE   CAUSE, 

necessary  to  issue  of  warrant,  56. 
PROCESS    (See  Warrant), 
what  is,  12. 

essentials  of,  to  protect  officer,  29,  30. 
magistrate  must  follow  law  in  issuing,  11. 
1^ 


194  INDEX 

[References  are  to  sections.] 
PROCESS  —  Continued. 

is  void  if  magistrate  has  no  jurisdiction,  16. 
serving  improperly  may  be  false  imprisonment,  279. 
authority  to  serve  may  not  be  delegated  by  a  deputy,  62. 
PROSTITUTE, 

soliciting  by,  is  breach  of  the  peace,  124. 

officer  has  no  right  to  arrest  on  common  reputation  of, 

124. 
charging  one  with  being,  is  not  a  breach  of  the  peace, 
125. 
PROTECTION, 

,  writ  of,  is  only  prima  facie  proof  of  exemption,  263. 

E. 

READING  WARRANT, 

to  prisoner  may  be  necessary,  78. 
RENDITION   {See  Extradition), 

what  is  inter-state,  222. 

can  only  be  for  crime,  22.5. 

difference  between  rendition  and  extradition,  204. 

fugitive  may  be  arrested  before  proceedings  are  begun 
in,  223. 

fugitive  may  be  tried  for  any  crime,  220. 

preliminaries  to  starting  proceedings  in,  224. 

jurisdiction  in,  procured  by  stratagem,  221. 

will  not  lie  for  bastardy,  225. 

will  not  be  ordered  for  trivial  offences,  222. 

one  under  bail  in,  may  not  be  re-arrested,  220. 

duty  to  surrender  in,  is  obligatory,  226. 

who  is  fugitive  from  justice  in,  227. 
RESCUE, 

return  of,  36. 
RESISTING  {See  Interference), 

illegal  aiTest,  86. 

right  to  kill  one  resisting  legal  arrest,  86,  92,  185,  190. 

person  resisting  is  not  entitled  to  see  warrant,  78. 


INDEX  195 

[References  are  to  sections.] 

RESTRAINT, 

is  necessary  to  secure  personal  liberty,  8. 

of  person  is  necessary  to  arrest,  73. 
RETURN, 

of  warrant  is  necessary  to  its  validity,  34. 

without  return  officer  is  not  protected,  3i. 

may  be  amended  by  officer  with  permission  of  court,  36. 

effect  of  return  as  against  officer,  3G. 

effect  of  return  as  against  parties,  36. 

of  rescue,  36. 
ROUGHNESS  (See  Fokck), 

when  not  necessary  is  unjustifiable,  186. 

S. 

SEAL, 

is  not  necessary  to  warrant  at  common  law,  50. 

is  necessary  on  warrant  only  when  statute  requires  it, 
45,  50,  93. 
SEARCHING   PRISONER, 

right  to  search  prisoner,  "200. 

may  be  at  time  of  arrest,  202. 

removing  clothing  in,  200. 
no  right  to  remove  ordinary  money  and  valuables  in,  200. 
SEARCH    WARRANT, 

definition  of,  21. 

how  issued,  22. 

may  be  issued  to  search  a  person,  22. 

permission  will  justify  searching   w-itliout  a  warrant,  21. 

illegal  .seizure  under,  does  not   destroy  admissibility  of 
evidence  obtained  thereby,  24a. 

issues  to  recover  what,  22,  25. 

provisions  of  United  States  Constitution,  relating  to,  23- 

United  States  Constitution,  does  not  apply  to  searches 
made  by  State  authorities,  23. 
STATUTE, 

abrogates  common  law,  13. 

authorizing  civil  arrest,  10 1. 


196  INDEX 

[References  are  to  sections.] 
STATUTE  —  Continued. 

giving  jurisdiction  implies  power  to  arrest,  59. 

if  unconstitutional,  cannot  give  jurisdiction,  16,  289. 

generally  regulates  search  warrants,  25. 

may  authorize  general  arrest  without  warrant,  38. 

in  absence  of,  warrant  may  issue  on  Sunday,  47. 

wan-ant  is  valid  only  in  issuing  county  in  absence  of,  49. 

usually  provides  who  may  issue  warrants,  55. 

authority  given  by,  must  be  followed  strictly,  289. 

unless  required  by,  complaint  need  not  be  in  writing,  51. 

must  not  be  construed  so  as  to  multiply  felonies,  115. 

may  require  seal  on  warrant,  50,  93. 

exemptions  existing  by  statute,  269,  270. 
STOLEN   GOODS, 

possession  of,  as  evidence,  242a. 
SUBSCRIBED, 

means  written  beneath,  58. 
SUNDAY, 

warrants  may  issue  on,  47. 

no  civil  arrest  can  be  made  on,  47,  76. 

arrest  for  conspiracy  may  be  on,  261. 

arrest  for  felony  may  be  on,  47,  76. 
SUSPICION, 

arrest  on  reasonable,  73,  129. 

T. 
TERRITORY, 

jurisdiction  over  ceded,  19. 
THREATS, 

evidence  of,  242. 

may  justify  arrest,  121. 
TRESPASS  {See  False  Imprisonmext,  Arrest), 

what  is,  283. 

trespass  "  vi  et  armis,''''  284. 

will  lie  for  an  unintentional  act,  285 

will  not  lie  for  an  accidental  act,  285. 

criminal  action  will  lie  only  when  criminal  intent  exists, 
286. 


INDEX  197 

[References  are  to  sections.] 

TRESPASS  —  Continued. 

trespass  "  ab  inilio,'^  294,  295. 

ab  initio  does  not  apply  to  criminal  cases,  295. 

in  entry  by  permission  of  party,  295. 
TRESPASSER, 

who  is  a,  283, 

U. 
UNIFORM, 

is  notice  that  wearer  is  an  officer,  81. 

V. 

VAGRANCY, 

arrest  for,  142. 
VESSELS, 

jurisdiction  over  foreign,  18. 

W. 
WAIVER, 

prisoner  may  waive  right  to  be  taken  before  magistrate, 
102,  197,  280. 
WARRANT  (See  Process,  Arrest,  Officer), 
search  warrant,  21,  55. 
bench  warrant,  2(3. 
of  arrest,  27. 
life  of,  35. 

requisites  of  a,  valid,  45,  93. 
requisites  of,  in  extradition,  209. 
who  may  apply  for,  53. 
who  may  issue,  55. 

must  not  be  issued  without  complaint,  52,  56. 
who  may  is.sue  in  extradition,  207,  208. 
will  not  protect  officer  unless  issued  to  him,  44. 
must  not  be  i.^sued  in  blank.  37. 
in  issuing,  law  must  be  followed  strictly,  11. 
arrest  with,  90  el  seq. 
arrest  with  is  preferable,  20. 


198  INDEX 

[References  are  to  sections.] 
^VAnRA.^NT— Continued. 

officer  need  not  imperil,  79. 

need  not  be  shown  unless  demanded,  82. 

officer  need  not  part  with  possession  of,  79. 

when  officer  is  not  obliged  to  show,  78,  79. 

when  person  arrested  is  entitled  to  see,  78. 

must  be  in  possession  of  officer  at  time  of  arrest,  46. 

when  void,  37,  38,  56,  93. 

what  it  must  show,  45. 

must  command  arrest,  45. 

to  whom  it  should  be  directed,  60,  61. 

may  be  directed  to  a  private  person,  60. 

may  be  directed  to  officer  by  name  or  description  of 

office,  61. 
mere  reading  will  not  constitute  arrest,  67. 
must  name  or  describe  party  to  be  arrested,  90,  279. 
actual  notice  of  authority  obviates  necessity  of  reading 

83. 
will  justify  arrest  of  one  named  only,  93. 
if  not  valid,  officer  is  a  trespasser,  92. 
when  protection  to,  29,  91. 
arrest  on  lawful  for  unlawful  purpose,  279. 
need  not  state  when  prisoner  is  to  be  brought  before 

magistrate,  96. 
will  not  pi'otect  officer  unless  magistrate  has  general 

jurisdiction,  30. 
arrest  may  be  on  old  warrant  not  returned,  35. 
escaped  prisoner  may  be  taken  on  same  or  without  any 

warrant,  89. 
endorsing  warrant  to  arrest  in  another  county,  49. 
can  be  no  escape  on  void,  89. 
may  be  altered  only  by  issuing  magistrate,  48. 
may  be  issued  on  Sunday,  except,  47. 
remains  in  force  until  returned,  35. 
to  arrest  fugitive  in  another  State,  214. 
general  warrants  are  void,  38,  41. 
arrest  without,  112  et  seq. 


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